THIRD AMENDED AND RESTATED
BYLAWS
OF
BEASLEY BROADCAST GROUP, INC.
ARTICLE I - OFFICES
Section 1. The registered office of Beasley Broadcast Group, Inc. (the
"Corporation") shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the Corporation may require.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the
stockholders shall be held each year on a date and time designated by the Board
of Directors. At such meeting, the stockholders shall elect the directors of the
corporation and conduct such other business as may come before the meeting. The
time and place of the annual meeting shall be determined by the Board of
Directors. Special meetings of the stockholders, for any purpose, or purposes,
unless otherwise prescribed by statute or by the Restated Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of a majority of the Board
of Directors, or at the request in writing of stockholders owning a majority in
amount of the entire voting power of the issued and outstanding capital stock of
the Corporation, provided, however, that if there are two vacancies in the
offices for the Class A Directors (as defined in Article III, Section 1 below),
then holders of a majority of the Class A Common Stock outstanding shall have
the right to call a special meeting of stockholders for the purpose of electing
Class A Directors to fill such vacancies. Such request shall state the purpose
or purposes of the proposed meeting. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice.
Section 2. Notice. Whenever stockholders are required or permitted to take
action at a meeting, written or printed notice of every annual or special
meeting of the
stockholders, stating the place, date, time, and, in the case of special
meetings, the purpose or purposes, of such meeting, shall be given to each
stockholder entitled to vote at such meeting not less than l0 nor more than 60
days before the date of the meeting. All such notices shall be delivered, either
personally or by mail, by or at the direction of the Board of Directors, the
Chairman of the Board, the Chief Executive Officer, the President or the
Secretary, and if mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage prepaid and addressed to the
stockholder at his or her address as it appears on the records of the
corporation.
Section 3. Stockholders List. The officer having charge of the stock ledger
of the corporation shall make, at least l0 days before every meeting of the
stockholders, a complete list arranged in alphabetical order of the stockholders
entitled to vote at such meeting, specifying the address of and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least l0 days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 4. Quorum. The presence of stockholders entitled to cast at least a
majority of the votes that all stockholders are entitled to cast on a matter to
be acted upon at a meeting of the stockholders shall constitute a quorum for the
purposes of consideration and action on the matter, except as otherwise provided
by statute or by the Restated Certificate of Incorporation. If a quorum is not
present, the holders of the shares present in person or represented by proxy at
the meeting and entitled to vote thereat shall have the power, by the
affirmative vote of the holders of a majority of the voting power represented by
such shares, to adjourn the meeting to another time or place. Unless the
2
adjournment is for more than thirty days or unless a new record date is set for
the adjourned meeting, no notice of the adjourned meeting need be given to any
stockholder, provided that the time and place of the adjourned meeting were
announced at the meeting at which the adjournment was taken. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting.
Section 5. Vote Required. When a quorum is present or represented by proxy
at any meeting, the vote of a majority of the votes cast by all stockholders
entitled to vote and, if any stockholders are entitled to vote as a class, the
vote of a majority of the votes cast by the stockholders entitled to vote as a
class, whether such stockholders are present in person or represented by proxy
at the meeting, shall be the act of the stockholders, unless the question is one
upon which by express provisions of an applicable statute or of the Restated
Certificate of Incorporation a different vote is required, in which case such
express provision shall govern and control the decision of such question.
Section 6. Voting Rights. Except as otherwise provided by the Delaware
General Corporation Law or by the Restated Certificate of Incorporation of the
Corporation or any amendments thereto and subject to Section 3 of ARTICLE VI
hereof, each holder of Class A Common Stock shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
Class A held by such stockholder, and each holder of Class B Common Stock shall
at every meeting of the stockholders shall be entitled to ten votes in person or
by proxy for each share of Class B Common Stock held by such stockholder.
Section 7. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him or her
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
3
ARTICLE III - DIRECTORS
Section 1. Number, Election and Term of Office. The number of directors
which shall constitute the whole Board of Directors shall be not less than one
(1) and not more than nine (9). The exact number of directors shall be
determined by resolution of the Board. The directors need not be stockholders.
The directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 3 of this Article, and each director elected shall hold
office until his successor is elected and qualified or until his or her death,
resignation or removal. From and after the first annual meeting of the
stockholders that occurs after the closing date of the initial public offering
of the Class A Common Stock, the holders of Class A Common Stock, voting
separately as a class, shall be entitled to elect two of the directors to be
elected at such meeting ("Class A Directors").
Section 2. Removal and Resignation. Any director or the entire Board of
Directors may be removed at any time, with or without cause, by the vote of a
majority of the votes cast by all stockholders entitled to vote at an election
of directors, except that the Class A Directors may be removed without cause
only by the vote of the holders of a majority of the shares of Class A Common
Stock, and except as otherwise provided by statute. Any director may resign at
any time upon written notice to the corporation.
Section 3. Vacancies. Vacancies and newly created directorships resulting
from any increase in the authorized number of directors may be filled by a vote
of the majority of the Board of Directors, and each director so chosen shall
hold office until the next annual meeting of stockholders and until a successor
is duly elected and qualified or until his or her earlier death, resignation or
removal as hereinafter provided; provided, however, that any vacancy resulting
from the resignation or removal of a Class A Director shall be filled by the
remaining Class A Director, or, if there is no remaining Class A Director, by
the vote of the holders of a majority of the shares of Class A Common Stock.
4
Section 4. Annual Meetings. The annual meeting of each newly elected Board
of Directors shall be held without other notice than this bylaw immediately
after, and at the same place as, the annual meeting of stockholders.
Section 5. Other Meetings and Notice. Regular meetings, other than the
annual meeting, of the Board of Directors may be held without notice at such
time and at such place as shall from time to time be determined by resolution of
the board. Special meetings of the Board of Directors may be called by or at the
request of the chairman, the chief executive officer or the president on at
least 24 hours notice to each director, either personally, by telephone, by
mail, or by telegraph; in like manner and on like notice the secretary must call
a special meeting on the written request of a majority of directors.
Section 6. Quorum. A majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 7. Committees. The Board of Directors may, by resolution passed by
a majority of the whole board, designate one or more committees. Each committee
shall consist of one or more of the directors of the corporation, which, to the
extent provided in such resolution and not otherwise limited by statute, shall
have and may exercise the powers of the Board of Directors in the management and
affairs of the Corporation including without limitation the power to declare a
dividend and to authorize the issuance of stock. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors. Each committee
shall keep regular minutes of its meetings and report the same to the
5
directors when required.
Section 8. Committee Rules. Each committee of the Board of Directors may
fix its own rules of procedure and shall hold its meetings as provided by such
rules, except as may otherwise be provided by the resolution of the Board of
Directors designating such committee, but in all cases the presence of at least
a majority of the members of such committee shall be necessary to constitute a
quorum. In the event that a member and that member's alternate, if alternates
are designated by the Board of Directors as provided in Section 7 of this
ARTICLE III, of such committee is/are absent or disqualified, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not such member or members constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member.
Section 9. Communications Equipment. Members of the Board of Directors or
any committee thereof may participate in and act at any meeting of such board or
committee through the use of a conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in the meeting pursuant to this section shall
constitute presence in person at the meeting.
Section 10. Action by Written Consent. Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board of Directors or committee.
ARTICLE IV - OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by the
Board of Directors and shall consist of a chairman of the board (if the Board of
Directors so deems advisable and elects), a president, one or more vice-
presidents, a secretary, a
6
treasurer, and such other officers and assistant officers as may be deemed
necessary or desirable by the Board of Directors. Any number of offices may be
held by the same person. In its discretion, the Board of Directors may choose
not to fill any office for any period as it may deem advisable, except the
offices of president and secretary.
Section 2. Election and Term of Office. The officers of the Corporation
shall be elected annually by the Board of Directors at the meeting of the Board
of Directors held after each annual meeting of stockholders. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Vacancies may be filled or new offices
created and filled at any meeting of the Board of Directors. Each officer shall
hold office until the next annual meeting of the Board of Directors and until a
successor is duly elected and qualified or until his or her earlier death,
resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the Board of Directors
may be removed by the Board of Directors whenever in its judgment the best
interest of the Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term by the Board of Directors
then in office.
Section 5. Compensation. Compensation of all officers shall be fixed by the
Board of Directors, and no officer shall be prevented from receiving such
compensation by virtue of the fact that he or she is also a director of the
corporation.
Section 6. Chairman of the Board. The chairman shall preside at all
meetings of the Board of Directors and all meetings of the stockholders and
shall have such other powers and perform such duties as may from time to time be
assigned to him by the Board of Directors.
Section 7. Vice Chairman of the Board. The Vice Chairman shall, in the
absence
7
or disability of the Chairman, perform the duties and exercise the powers of the
Chairman and shall perform such other duties and have such other powers as the
Board of Directors may, from time to time, determine or these bylaws may
prescribe.
Section 8. The Chief Executive Officer. The chief executive officer of the
Corporation shall have such powers and perform such duties as are specified in
these bylaws and as may from time to time be assigned to him by the Board of
Directors. The chief executive officer shall have overall management of the
business of the Corporation and its subsidiaries and shall see that all orders
and resolutions of the boards of directors of the Corporation and its
subsidiaries are carried into effect. The chief executive officer shall execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation. The chief executive officer shall have general powers of
supervision and shall be the final arbitrator of all differences among officers
of the Corporation and its subsidiaries, and such decision as to any matter
affecting the Corporation and its subsidiaries subject only to the Boards of
Directors.
Section 9. The President. The president shall have such powers and perform
such duties as are specified in these bylaws and as may from time to time be
assigned to him by the Board of Directors. The president shall have general and
active management of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. The
president shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to
be otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the corporation. The president shall have general powers of
supervision and shall be the final arbitrator of all differences between
officers of the
8
corporation, and such decision as to any matter affecting the Corporation
subject only to the Board of Directors.
Section 10. Chief Operating Officer. The Chief Operating Officer, or if
there shall be more than one, the Chief Operating Officers shall perform the
duties and exercise the powers as the Board of Directors may, from time to time,
determine or these bylaws may prescribe.
Section 11. Vice Presidents. The Vice President, or if there shall be more
than one, the Vice Presidents in the order determined by the Board of Directors,
shall, in the absence or disability of the president, perform the duties and
exercise the powers of the president and shall perform such other duties and
have such other powers as the Board of Directors may, from time to time,
determine or these bylaws may prescribe.
Section 12. The Secretary and Assistant Secretaries. The secretary shall
attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The secretary
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors; perform such other duties as may be
prescribed by the Board of Directors or president, under whose supervision he or
she shall be; shall have custody of the corporate seal of the Corporation and
the secretary, or an assistant secretary, shall have authority to affix the same
to any instrument requiring it and when so affixed, it may be attested by his or
her signature or by the signature of such assistant secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his or her signature. The
assistant secretary, or if there be more than one, the assistant secretaries in
the order determined by the Board of Directors, shall, in the absence or
disability of the secretary, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
Board of Directors
9
may from time to time prescribe.
Section 13. The Treasurer and Assistant Treasurer. The treasurer shall have
the custody of the corporate funds and securities; shall keep full and accurate
accounts of receipts and disbursements in books belonging to the corporation;
shall deposit all monies and other valuable effects in the name and to the
credit of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements; and shall render to the president and
the Board of Directors, at its regular meeting or when the Board of Directors so
requires, an account of the corporation. If required by the Board of Directors,
the treasurer shall give the Corporation a bond (which shall be rendered every
six years) in such sums and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of the office of treasurer and for the restoration to the corporation, in
case of death, resignation, retirement, or removal from office, of all books,
papers, vouchers, money, and other property of whatever kind in the possession
or under the control of the treasurer belonging to the corporation. The
assistant treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the Board of Directors, shall in the
absence or disability of the treasurer, perform the duties and exercise the
powers of the treasurer and shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe.
Section 14. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these bylaws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the Board of Directors.
ARTICLE V - INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Right to Indemnification. Each person who was or is made party
or is threatened to be made a party to or is otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or
10
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
is or was a director or officer of the Corporation or, while a director or
officer of the corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter, an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law ("DGCL"), as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide for broader
indemnification rights than permitted as of the date of these bylaws), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
excise taxes or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that except as provided in
Section 2 of this ARTICLE V with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the corporation. The right to indemnification conferred in this Section 1 of
this ARTICLE V shall be a contract right and shall include the obligation of the
Corporation to pay the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advance of expenses");
provided, however, that if and to the extent that the Board of Directors of the
Corporation requires, an advance of expenses incurred by an indemnitee in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by
11
such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such indemnitee is not entitled to be indemnified for such
expenses under this Section 1 or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same or lesser scope and effect as the foregoing
indemnification of directors and officers.
Section 2. Procedure for Indemnification. Any indemnification of a director
or officer of the Corporation or advance of expenses under Section 1 of this
ARTICLE V shall be made promptly, and in any event within forty-five days (or,
in the case of an advance of expenses, twenty days) upon the written request of
the director or officer. If a determination by the Corporation that the director
or officer is entitled to indemnification pursuant to this ARTICLE V is
required, and the Corporation fails to respond within sixty days to a written
request for indemnity, the Corporation shall be deemed to have approved the
request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to such
request is not made within forty-five days (or, in the case of an advance of
expenses, twenty days), the right to indemnification or advances as granted by
this ARTICLE V shall be enforceable by the director or officer in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to
Section 1 of this ARTICLE V, if any, has been tendered to the corporation) that
the claimant has not met the standards of conduct which make it
12
permissible under the DGCL for the Corporation to indemnify the claimant for the
amount claimed, but the burden of such defense shall be on the corporation.
Neither the failure of the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the DGCL, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct. The procedure for indemnification of
other employees and agents for whom indemnification is provided pursuant to
Section 1 of this ARTICLE V shall be the same procedure set forth in this
Section 2 for directors or officers, unless otherwise set forth in the action of
the Board of Directors of the Corporation providing for indemnification for such
employee or agent.
Section 3. Insurance. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director, officer,
employee or agent of the Corporation or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against him or her and incurred by him or her in any
such capacity, whether or not the Corporation would have the power to indemnify
such person against such expenses, liability or loss under the DGCL.
Section 4. Service for Subsidiaries. Any person serving as a director,
officer, employee or agent of another corporation, partnership, limited
liability company, joint venture or other enterprise, at least 50% of whose
equity interests are owned by the Corporation (hereinafter a "subsidiary" for
purposes of this ARTICLE V) shall be conclusively presumed to be serving in such
capacity at the request of the corporation.
Section 5. Reliance. Persons who after the date of the adoption of these
bylaws
13
become or remain directors or officers of the Corporation or who, while a
director or officer of the corporation, become or remain a director, officer,
employee or agent of a subsidiary, shall be conclusively presumed to have relied
on the rights to indemnity, advance of expenses and other rights contained in
this ARTICLE V in entering into or continuing such service. The rights to
indemnification and to the advance of expenses conferred in this ARTICLE V shall
apply to claims made against an indemnitee arising out of acts or omissions
which occurred or occur both prior and subsequent to the adoption hereof.
Section 6. Non-Exclusivity of Rights. The rights to indemnification and to
the advance of expenses conferred in this ARTICLE V shall not be exclusive of
any other right which any person may have or hereafter acquire under these
bylaws or the corporation's Restated Certificate of Incorporation or under any
statute, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 7. Merger or Consolidation. For purposes of this ARTICLE V,
references to "the corporation" shall include any constituent corporation
(including any constituent of a constituent) absorbed into the corporation in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, so that any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at the request of
such constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this ARTICLE V with respect to the
resulting or surviving corporation as he or she would have with respect to such
constituent corporation if its separate existence had continued.
ARTICLE VI - CERTIFICATES OF STOCK
Section 1. Form. Subject to the Restated Certificate of Incorporation,
every holder of stock in the Corporation shall be entitled to have a
certificate, signed by, or in
14
the name of the Corporation by the president or a vice-president, and the
secretary or an assistant secretary of the corporation, certifying the number of
shares owned by him or her in the corporation. Where a certificate is signed (l)
by a transfer agent or an assistant transfer agent other than the Corporation or
its employee or (2) by a registrar, other than the Corporation or its employee,
the signature of any such president, vice-president, secretary, or assistant
secretary may be facsimile. In case any officer or officers have signed a
certificate or certificates, or whose facsimile signature or signatures have
been used on certificate or certificates, shall cease to be such officer or
officers of the Corporation whether because of death, resignation or otherwise
before such certificate or certificates have been delivered by the corporation,
such certificate or certificates may nevertheless be issued and delivered as
though the person or persons who signed such certificate or certificates or
whose facsimile signature or signatures have been used on such certificate or
certificates had not ceased to be such officer or officers of the corporation.
All certificates for shares shall be consecutively numbered or otherwise
identified. The name of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be entered on the
books of the corporation. All certificates surrendered to the Corporation for
transfer shall be canceled, and no new certificate shall be issued in
replacement until the former certificate for a like number of shares shall have
been surrendered or canceled, except as otherwise provided in Section 2 with
respect to lost, stolen or destroyed certificates.
Section 2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her
15
legal representative, to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 3. Fixing a Record Date. The Board of Directors may fix in advance
a record date for the determination of stockholders entitled to notice of, and
to vote at, any meeting of stockholders and any adjournment thereof;
stockholders entitled to consent to corporate action in writing without a
meeting; stockholders entitled to receive payment of any dividend or other
distribution or allotment of rights or entitled to exercise any rights in
respect to any change, conversion or exchange of stock; or, for the purpose of
any other lawful action, which record date may not precede the date on which the
resolution fixing such record date is adopted by the Board of Directors. The
record date for the determination of stockholders entitled to notice of, and to
vote at, a meeting of stockholders shall not be more than 60 days nor less than
10 days before the date of such meeting. The record date for the determination
of stockholders entitled to consent to corporate action in writing without a
meeting shall not be more than 10 days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. The record date for
the determination of stockholders with respect to any other action shall not be
more than 60 days before the date of such action. If no record date is fixed:
the record date for determining stockholders entitled to notice of, and to vote
at, a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held; the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting when no prior action by the Board of Directors is
required by the Delaware General Corporation Law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to be
taken is delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent
of
16
the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded; and, the record date for determining stockholders
with respect to any other action shall be the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
ARTICLE VII - GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the corporation,
subject to the provisions of the Restated Certificate of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares of the
capital stock, subject to the provisions of the Restated Certificate of
Incorporation. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, equalize dividends, repair or
maintain any property of the corporation, or for any other purpose, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other orders
for the payment of money by or to the Corporation and all notes and other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents of the corporation, and in such
manner, as shall be determined by resolution of the Board of Directors or a duly
authorized committee thereof.
Section 3. Contracts. The Board of Directors may authorize any officer or
officers, or any agent or agents, of the Corporation to enter into any contract
or to execute and deliver any instrument in the name of and on behalf of the
corporation, and such authority may be general or confined to specific
instances.
Section 4. Loans. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiary, including any officer or employee who is a
director of the Corporation or
17
its subsidiary, whenever, in the judgment of the directors, such loan, guaranty
or assistance may reasonably be expected to benefit the corporation. The loan,
guaranty or other assistance may be with or without interest, and may be
unsecured, or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the corporation.
Nothing contained in this section shall be deemed to deny, limit or restrict the
powers of guaranty or warranty of the Corporation at common law or under any
statute.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year unless otherwise fixed by resolution of the Board of Directors.
Section 6. Corporate Seal. The Board of Directors shall provide a corporate
seal which shall be in the form of a circle and shall have inscribed thereon the
name of the Corporation and the words "Corporate Seal, Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 7. Voting Securities Owned by Corporation. Voting securities in any
other corporation held by the Corporation shall be voted by the president or the
vice president, unless the Board of Directors specifically confers authority to
vote with respect thereto upon some other person or officer. Any person
authorized to vote securities shall have the power to appoint proxies, with
general power of substitution.
Section 8. Inspection of Books and Records. Any stockholder of record, in
person or by attorney or other agent, shall, upon written demand upon oath
stating the purpose thereof, have the right during the usual hours of business
to inspect for any proper purpose the corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean any purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The
18
demand under oath shall be directed to the Corporation at its registered office
in the State of Delaware or at its principal place of business.
Section 9. Section Headings. Section headings in these bylaws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision of
these bylaws is or becomes inconsistent with any provision of the Restated
Certificate of Incorporation, the Delaware General Corporation Law or any other
applicable law, the provision of these bylaws shall not be given any effect to
the extent of such inconsistency but shall otherwise be given full force and
effect.
ARTICLE VIII - AMENDMENTS
These bylaws may be amended, altered or repealed and new bylaws adopted at
any meeting of the Board of Directors by a majority vote. The fact that the
power to adopt, amend, alter or repeal the bylaws has been conferred upon the
Board of Directors shall not divest the stockholders of the same powers.
19