Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
UNISOURCE WORLDWIDE, INC.
(a Delaware Corporation)
ARTICLE I
OFFICES AND FISCAL YEAR
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SECTION 1.01. Registered Office. The registered office of the Corporation
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shall be in the City of Wilmington, County of New Castle, State of Delaware and
the name and address of its registered agent is The Corporation Trust Company,
1209 Orange Street, Wilmington, Delaware.
SECTION 1.02. Other Offices. The Corporation may also have offices at
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such other places within or without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation
requires.
SECTION 1.03. Fiscal Year. The fiscal year of the Corporation shall end
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on the 30th of September in each year unless the Board of Directors determines
otherwise.
ARTICLE II
MEETINGS OF STOCKHOLDERS
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SECTION 2.01. Place of Meeting. All meetings of the stockholders of the
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Corporation shall be held at the registered office of the Corporation, or at
such other place within or without the State of Delaware as shall be designated
by the Board of Directors in the notice of such meeting.
SECTION 2.02. Annual Meeting. The Board of Directors shall fix the date
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and time of the annual meeting of the stockholders, and at said meeting the
stockholders then entitled to vote shall elect directors and shall transact such
other business as may properly be brought before the meeting.
SECTION 2.03. Special Meetings. Subject to the rights of the holders of
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any series of stock having a preference over the Common Stock of the Corporation
as to dividends or
upon liquidation ("Preferred Stock") with respect to such series of Preferred
Stock or any other series or class of stock (excluding Common Stock) set forth
in the Certificate of Incorporation, a special meeting of the stockholders shall
be called only by the secretary of the Corporation at the request of (i) a
majority of the total number of directors which the Corporation at the time
would have if there were no vacancies or (ii) by any person authorized by the
Board of Directors (through a vote of a majority of the total number of
directors which the Corporation at the time would have if there were no
vacancies) to call a special meeting.
SECTION 2.04. Notice of Meetings. Written notice of the place, date and
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hour of every meeting of the stockholders, whether annual or special, shall be
given to each stockholder of record entitled to vote at the meeting not less
than ten nor more than sixty days before the date of the meeting. Every notice
of a special meeting shall state the purpose or purposes thereof.
SECTION 2.05. Quorum, Manner of Acting and Adjournment. The holders of a
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majority of the stock issued and outstanding (not including treasury stock) 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, by the Certificate of
Incorporation or by these By-laws. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the Board of
Directors or the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. At any such adjourned meeting, at which a quorum shall
be present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. When a quorum is
present at any meeting, the vote by stockholders present or represented by proxy
entitled to cast a majority of the votes which all stockholders present are
entitled to cast thereon shall decide any question brought before such meeting,
unless the question is one upon which, by express provision of the applicable
statute, the Certificate of Incorporation or these By-laws, a different vote is
required in which case such express provision shall govern and control the
decision of such question. Except upon those questions governed by the
aforesaid express provisions, the stockholders present in person or by proxy at
a duly organized meeting can continue to do business until adjournment,
notwithstanding withdrawal of enough stockholders to leave less than a quorum.
SECTION 2.06. Organization. At every meeting of the stockholders, the
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chairman of the board, if there be one, shall act as chairman or in the case of
a vacancy in the office or absence of the chairman of the board, one of the
following persons present in the following order stated shall act as chairman:
the vice chairman, if one has been appointed, the
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president, a chairman designated by the Board of Directors, the vice presidents
in their order or rank, or a chairman chosen by the stockholders entitled to
cast a majority of the votes which all stockholders present in person or by
proxy are entitled to cast, shall act as chairman, and the secretary, or, in his
or her absence, an assistant secretary, or in the absence of the secretary and
the assistant secretaries, a person appointed by the chairman, shall act as
secretary.
SECTION 2.07. Voting. Unless otherwise provided in the Certificate of
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Incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of capital stock
having voting power held by such stockholder. No proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer
period. Every proxy shall be executed in writing by the stockholder or by such
stockholder's duly authorized attorney-in-fact and filed with the secretary of
the Corporation; provided, however, the foregoing clause shall not preclude the
giving of proxies by electronic, telephonic or other means so long as such
procedure is expressly approved by the Corporation's Board of Directors and is
permitted by law. A proxy may be made irrevocable regardless of whether the
interest with which it is coupled is an interest in the stock itself or an
interest in the Corporation generally. A proxy shall not be revoked by the
death or incapacity of the maker unless, before the vote is counted or the
authority is exercised, written notice of such death or incapacity is given to
the secretary of the Corporation.
SECTION 2.08. Notice of Stockholder Business and Nominations.
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(A) Annual Meeting of Stockholders.
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(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) by or at the
direction of the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors which the Corporation at the time
would have if there were no vacancies or (b) by any stockholder of the
Corporation who is entitled to vote at the meeting with respect to the election
of directors or the business to be proposed by such stockholder, as the case may
be, who complies with the notice procedures set forth in clauses (2) and (3) of
paragraph (A) of this Section 2.08 and who is a stockholder of record at the
time such notice is delivered to the secretary of the Corporation as provided
below.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (b) of paragraph (A) (1) of
this Section 2.08, the stockholder must have given timely notice thereof in
writing to the secretary of the Corporation and such business must be a proper
subject for stockholder action under the Delaware General Corporation Law (the
"DGCL"). To be timely, a stockholder's notice shall be delivered to the
secretary of the Corporation at the principal executive office of the
Corporation not less than sixty days nor more than ninety days prior to the
first anniversary of the preceding
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year's annual meeting (or action taken by consent in lieu of annual meeting);
provided, however, that in the event that the date of the annual meeting is
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advanced by more than 30 days, or delayed by more than 30 days, from such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the ninetieth day prior to such annual meeting and not later
than either the close of business on (a) the tenth day following the day on
which notice of the date of such meeting was mailed or (b) the tenth day
following the day on which public announcement of the date of such meeting is
first made, whichever first occurs in (a) or (b). Such stockholder's notice
shall set forth (x) as to each person whom the stockholder proposes to nominate
for election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including such person's written consent to being named in the proxy statement as
a nominee and to serving as a director if elected; (y) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest in such
business of such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made; and (z) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the Corporation's
books, and of such beneficial owner and (ii) the class and number of shares of
the Corporation which are owned beneficially and of record by such stockholder
and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)
(2) of this Section 2.08 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there is no
public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least eighty
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by paragraph (A) (2) of this Section 2.08 shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the secretary of
the Corporation at the principal executive offices of the Corporation not later
than the close of business on the tenth day following the day on which such
public announcement is first made by the Corporation.
(B) Special Meeting of Stockholders. Only such business shall be conducted
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at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation's notice of meeting and in accordance with
these By-laws. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (a) by or at the
direction of the Board of Directors or (b) provided that the Board of Directors
has determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this Section 2.08, who shall
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be entitled to vote at the meeting and who complies with the notice procedures
set forth in this Section 2.08. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the
Board of Directors, any such stockholder may nominate a person or persons (as
the case may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this Section 2.08 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 90th day prior to such special meeting and not later than the
close of business on the later of the 60th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholders notice as described above.
(C) General.
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(1) Only persons who are nominated in accordance with the procedures
set forth in this Section 2.08 shall be eligible to serve as directors and only
such business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
Section 2.08.
(2) Except as otherwise provided by law, the Certificate of
Incorporation or this Section 2.08, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this Section 2.08 and, if any proposed nomination or business is not in
compliance with his Section 2.08, to declare that such defective nomination or
proposal shall be disregarded.
(3) For purposes of this Section 2.08, "public announcement" shall mean
disclosure on a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(4) Notwithstanding the foregoing provisions of this Section 2.08, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 2.08. Nothing in this Section 2.08 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy materials with respect to a meeting of stockholders pursuant
to Rule 14a-8 under Exchange Act or (ii) of the holders of any series of
Preferred Stock or any other series or class of stock (excluding Common Stock)
as set forth in the Certificate of Incorporation to elect directors under
specified circumstances or to consent to specific actions taken by the
Corporation.
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SECTION 2.09. Procedure for Election of Directors; Required Vote. Subject
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to the rights of the holders of any series of Preferred Stock or any other
series or class of stock as set forth in the Certificate of Incorporation to
elect directors under specified circumstances, election of directors at all
meetings of the stockholders at which directors are to be elected shall be by a
plurality of the votes cast. Except as otherwise provided by law, the
Certificate of Incorporation, or these By-Laws, in all matters other than the
election of directors, the affirmative vote of a majority of the stock present
in person or represented by proxy at the meeting and entitled to vote on the
matter shall be the act of the stockholders.
SECTION 2.10. No Stockholder Action by Written Consent. Subject to the
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rights of the holders of any series of Preferred Stock or any other series or
class of stock (excluding Common Stock) set forth in the Certificate of
Incorporation to elect additional directors under specified circumstances or to
consent to specific actions taken by the Corporation, any action required or
permitted to be taken by the stockholders of the Corporation must be taken at an
annual or special meeting of the stockholders and may not be taken by any
consent in writing by such stockholders.
SECTION 2.11. Voting Lists. The officer who has charge of the stock
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ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting. The list shall be arranged in alphabetical order showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten 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 2.12. Inspectors of Election. All elections of directors shall be
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by written ballot, unless otherwise provided in the Certificate of
Incorporation; the vote upon any other matter need not be by ballot. In advance
of any meeting of stockholders the Board of Directors may appoint inspectors of
election, who need not be stockholders, to act at such meeting or any
adjournment thereof. If inspectors of election are not so appointed, the
chairman of any such meeting shall, appoint inspectors of election. The number
of inspectors shall be either one or three, as determined by the chairman of the
meeting or the Board of Directors, as the case may be. No person who is a
candidate for office shall act as an inspector. In case any person appointed as
an inspector fails to appear or fails or refuses to act, the vacancy may be
filled by appointment made by the Board of Directors in advance of the convening
of the meeting, or at the meeting by the chairman of the meeting.
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If inspectors of election are appointed as aforesaid, they shall determine
the number of shares outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the authenticity,
validity and effect of proxies and ballots, receive votes or ballots, hear and
determine all challenges and questions in any way arising in connection with the
right to vote, count and tabulate all votes, determine the result, and do such
acts as may be proper to conduct the election or vote with fairness to all
stockholders. If there be three inspectors of election, the decision, act or
certificate of a majority shall be effective in all respects as the decision,
act or certificate of all.
On request of the chairman of the meeting or of any stockholder or such
stockholder's proxy, the inspectors shall make a report in writing of any
challenge or question or matter determined by them, and execute a certificate of
any fact found by them.
ARTICLE III
BOARD OF DIRECTORS
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SECTION 3.01. Powers. The business and affairs of the Corporation shall
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be managed by or under the direction of the Board of Directors. In addition to
the express powers conferred upon the Board of Directors by these By-laws, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by law or the Certificate of
Incorporation or by these By-laws required to be exercised or done by the
stockholders.
SECTION 3.02. Number and Term of Office. The Board of Directors shall
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consist of such number of directors, not less than six nor more than seventeen,
as may be determined from time to time by (i) a resolution adopted by a majority
of the total number of directors which the Corporation at the time would have if
there were no vacancies or (ii) the affirmative vote of at least 66 2/3% of the
voting power of all of the shares of the Corporation entitled to vote generally
in the elections of directors, voting together as a single class. The directors,
other than those who may be elected by the holders of any series of Preferred
Stock or any other series or class of stock (excluding Common Stock) as set
forth in the Certificate of Incorporation to elect directors under specified
circumstances, shall be divided into three classes as nearly equal in size as
possible, and designated as Class I, Class II and Class III. Class I directors
shall be initially elected for a term expiring at the annual meeting of
stockholders next held after September 30, 1997, Class II directors shall be
initially elected for a term expiring at the annual meeting of stockholders next
held after September 30, 1998 and Class III directors shall be initially elected
for a term expiring at the annual meeting of stockholders next held after
September 30, 1999. Members of each class shall hold office until their
successors shall have been duly elected and qualified. At each annual meeting
of stockholders of the Corporation, the
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successors of the class of directors whose term expires at that meeting shall be
elected to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election, and until their
successors are elected and qualified. All directors of the Corporation shall be
natural persons, but need not be residents of Delaware or stockholders of the
Corporation.
SECTION 3.03. Vacancies. Subject to applicable law and the rights of the
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holders of any series of Preferred Stock or any other series or class of stock
(excluding Common Stock) as set forth in the Certificate of Incorporation to
elect directors under specified circumstances, and unless the Board of Directors
otherwise determines, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or stockholders
of the Corporation at any annual meeting, and directors so chosen shall hold
office for a term expiring at the annual meeting of stockholders at which the
term of office of the class to which they have been elected expires and until
such director's successor shall have been duly elected and qualified. No
decrease in the number of authorized directors shall shorten the term of any
incumbent director.
SECTION 3.04. Resignations. Any director of the corporation may resign at
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any time by giving written notice to the president or the secretary of the
Corporation. 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.
SECTION 3.05 Removal. Subject to the rights of the holders of any series
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of Preferred Stock or any other series or class of stock (excluding Common
Stock) as set forth in the Certificate of Incorporation to elect directors under
specified circumstances and applicable law, any director may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of at least 66 2/3% of the voting power of all the shares of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class.
SECTION 3.06. Organization. At every meeting of the Board of Directors,
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the chairman of the board, if there be one, or, in the case of a vacancy in the
office or absence of the chairman of the board, one of the following officers
present in the order stated: the vice chairman of the board, if there be one,
the president, the vice presidents in their order of rank and seniority, or a
chairman chosen by a majority of the directors present, shall preside, and the
secretary, or, in his or her absence, an assistant secretary, or in the absence
of the secretary and the assistant secretaries, any person appointed by the
chairman of the meeting, shall act as secretary.
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SECTION 3.07. Place of Meeting. The Board of Directors may hold its
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meetings, both regular and special, at such place or places within or without
the State of Delaware as the Board of Directors may from time to time appoint,
or as may be designated in the notice calling the meeting.
SECTION 3.08. Organization Meeting. Immediately after each annual
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election of directors, the Board of Directors shall meet for the purpose of
organization, election of officers, and the transaction of other business, at
the place where such election of directors was held or, if notice of such
meeting is given, at the place specified in such notice. Notice of such meeting
need not be given. In the absence of a quorum at said meeting, the same may be
held at any other time and place which 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 the directors, if any, not attending
and participating in the meeting.
SECTION 3.09. Regular Meetings. Regular meetings of the Board of
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Directors may be held without notice at such time and place as shall be
designated from time to time by resolution of the Board of Directors. If the
date fixed for any such regular meeting be a legal holiday under the laws of the
State where such meeting is to be held, then the same shall be held on the next
succeeding business day, not a Saturday, or at such other time as may be
determined by resolution of the Board of Directors. At such meetings, the
directors shall transact such business as may properly be brought before the
meeting.
SECTION 3.10. Special Meetings. Special meetings of the Board of
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Directors shall be held whenever called by the Chairman or by two or more of the
directors. Notice of each such meeting shall be given to each director by
telephone or in writing, including by facsimile message, to such telephone
number or address as a director may designate from time to time at least 24
hours (in the case of notice by telephone or facsimile message) or 48 hours (in
the case of notice by overnight delivery service) or three days (in the case of
notice by mail) before the time at which the meeting is to be held. Each such
notice shall state the time and place of the meeting to be so held. Any notice
by telephone shall be deemed effective if a message regarding the substance of
the notice is given on a director's behalf to the director's secretary or
assistant or to a member of the director's family.
SECTION 3.11. Quorum, Manner of Acting and Adjournment. At all meetings
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of the Board of Directors a majority of the directors shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board
of Directors, except as may be otherwise specifically provided by statute or by
the Certificate of Incorporation. 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.
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Unless otherwise restricted by the Certificate of Incorporation or these
By-laws, 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 consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the Board of
Directors.
SECTION 3.12. Executive and Other Committees. The Board of Directors may,
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by resolution adopted by a majority of the whole board, designate an executive
committee and one or more other committees, each committee to consist of one or
more directors and to have such authority as may be specified by the Board of
Directors, subject to the DGCL. 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, and the alternate or alternates, if any,
designated for such member, of any committee the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of any such absent or disqualified member. Any such
committee shall be governed by the procedural provisions of these By-laws that
govern the operation of the full Board of Directors, including with respect to
notice and quorum, except to the extent specified otherwise by the Board of
Directors.
SECTION 3.13. Compensation of Directors. Unless otherwise restricted by
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the Certificate of Incorporation, the Board of Directors shall have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. 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.
SECTION 3.14. Conference Telephone Meetings. One or more directors may
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participate in a meeting of the Board of Directors, or of a committee of the
Board of Directors, 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 shall
constitute presence in person at such meeting.
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ARTICLE IV
OFFICERS
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SECTION 4.01. Number, Qualifications and Designation. The officers of the
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Corporation shall be chosen by the Board of Directors and shall be a chairman, a
president, a secretary, a treasurer, and such other officers as may be elected
in accordance with the provisions of Section 4.03 of this Article. Any number
of offices may be held by the same person. Officers may, but need not, be
directors or stockholders of the Corporation. The chairman of the board shall
be the chief executive officer of the Corporation, except as otherwise
determined by the Board of Directors. All officers elected by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article IV. Such
officers shall also have such powers and duties as may from time to time be
conferred by the Board of Directors or by any committee thereof.
SECTION 4.02. Election and Term of Office. The officers of the
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Corporation, except those elected by delegated authority pursuant to the last
sentence of Section 4.03 of this Article IV, shall be elected annually by the
Board of Directors, but each such officer shall hold office until a successor is
elected and qualified, or until his or her earlier resignation or removal.
SECTION 4.03. Other Officers, Committees and Agents. The Board of
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Directors may from time to time elect such other officers and appoint such
committees, employees or other agents as it deems necessary, who shall hold
their offices for such terms and shall exercise such powers and perform such
duties as are provided in these By-laws, or as the Board of Directors may from
time to time determine. The Board of Directors may delegate to any officer or
committee the power to elect subordinate officers and to retain or appoint
employees or other agents, or committees thereof, and to prescribe the authority
and duties of such subordinate officers, committees, employees or other agents.
SECTION 4.04. Removal. Any officer elected, or agent appointed, by the
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Board of Directors may be removed by the affirmative vote of a majority of the
whole Board of Directors whenever, in their judgment, the best interests of the
Corporation would be served thereby. Any officer or agent appointed by another
officer by delegated authority pursuant to the last sentence of Section 4.03 may
be removed by such other officer whenever, in such officer's judgment, the best
interests of the Corporation would be served thereby. No elected officer shall
have any contractual rights against the Corporation for compensation by virtue
of such election beyond the date of the election of such officer's successor,
such officer's death, such officer's resignation or such officer's removal,
whichever event shall first occur, except as otherwise provided in a written
agreement or benefit plan.
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SECTION 4.05. Vacancies. A newly created elected office and a vacancy in
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any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors. Any vacancy in an office appointed by another officer
by delegated authority pursuant to Section 4.03 because of death, resignation,
or removal may be filled by such other officer.
SECTION 4.06. Officers' Bonds. No officer of the Corporation need provide
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a bond to guarantee the faithful discharge of the officer's duties unless the
Board of Directors shall by resolution so require a bond in which event such
officer shall give the Corporation a bond (which shall be renewed if and as
required) in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of office.
SECTION 4.07. Salaries. The salaries of the officers of the Corporation
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elected by the Board of Directors shall be fixed from time to time by the Board
of Directors, except to the extent the Board of Directors shall have delegated
power to officers of the Corporation to fix, from time to time, the salaries of
such officers' assistant or subordinate officers.
ARTICLE V
NOTICE - WAIVERS
----------------
SECTION 5.01. Notice, What Constitutes. Whenever, under the provisions of
------------------------
the statutes of Delaware or the Certificate of Incorporation or of these By-
laws, notice is required to be given to any director or stockholder, it shall
not be construed to mean personal notice, but such notice may be given in
writing, by mail, addressed to such director or stockholder, at such
stockholder's address as it appears on the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors
may also be given in accordance with Section 3.09 of Article III hereof.
SECTION 5.02. Waivers of Notice. Whenever any written notice is required
-----------------
to be given under the provisions of the Certificate of Incorporation, these By-
laws, or by statute, a waiver thereof in writing, signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent to the giving of such notice. Except in the
case of a special meeting of stockholders, neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice of such meeting.
Attendance of a person, either in person or by proxy, at any meeting, shall
constitute a waiver of notice of such meeting, except where a person attends a
meeting for the express purpose of objecting to the transaction of any business
because the meeting was not
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lawfully called or convened.
SECTION 5.03. Exception to Requirements of Notice. Whenever notice is
-----------------------------------
required to be given, under any provision of the DGCL or of the Certificate of
Incorporation or these By-laws, to any person with whom communication is
unlawful, the giving of such notice to such person shall not be required and
there shall be no duty to apply to any governmental authority or agency for a
license or permit to give such notice to such person. Any action or meeting
which shall be taken or held without notice to any such person with whom
communication is unlawful shall have the same force and effect as if such notice
had been duly given. In the event that the action taken by the Corporation is
such as to require the filing of a certificate under any section of the DGCL,
the certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
Whenever notice is required to be given, under any provision of the DGCL or
the Certificate of Incorporation or these By-laws, to any stockholder to whom
(i) notice of two consecutive annual meetings, and all notices of meetings or of
the taking of action by written consent without a meeting to such person during
the period between such two consecutive annual meetings, or (ii) all, and at
least two, payments (if sent by first class mail) of dividends or interest on
securities during a 12 month period, have been mailed addressed to such person
at such stockholder's address as shown on the records of the Corporation and
have been returned undeliverable, the giving of such notice to such person shall
not be required. Any action or meeting which shall be taken or held without
notice to such person shall have the same force and effect as if such notice had
been duly given. If any such person shall deliver to the Corporation a written
notice setting forth such stockholder's then current address, the requirement
that notice be given to such person shall be reinstated. In the event that the
action taken by the Corporation is such as to require the filing of a
certificate under any section of the DGCL, the certificate need not state that
notice was not given to persons to whom notice was not required to be given
pursuant to this section.
ARTICLE VI
CERTIFICATES OF STOCK, TRANSFER, ETC.
-------------------------------------
SECTION 6.01. Issuance. Each stockholder shall be entitled to a
--------
certificate or certificates for shares of stock of the Corporation owned by such
stockholder upon such stockholder's request therefor. The stock certificates of
the Corporation shall be numbered and registered in the stock ledger and
transfer books of the Corporation as they are issued. They shall be signed by
the chairman of the board, the president or a vice president and by the
secretary or an assistant secretary or the treasurer. It shall not be necessary
for any such certificate to bear the
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corporate seal unless required by law. Any of or all the signatures upon such
certificate may be a facsimile, engraved or printed. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon, any share certificate shall have ceased to be such officer,
transfer agent or registrar, before the certificate is issued, it may be issued
with the same effect as if he were such officer, transfer agent or registrar at
the date of its issue.
SECTION 6.02. Transfer. 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, assignation 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. No transfer shall be made which would be
inconsistent with the provisions of Article 8, Title 6 of the Delaware Uniform
Commercial Code-Investment Securities.
SECTION 6.03. Stock Certificates. Stock certificates of the Corporation
------------------
shall be in such form as provided by statute and approved by the Board of
Directors or by such committee or officer authorized by the Board of Directors
to approve the form of certificate. The stock record books and the blank stock
certificates books shall be kept by the secretary or by any agency designated by
the Board of Directors for that purpose.
SECTION 6.04. Lost, Stolen, Destroyed or Mutilated 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 such stockholder's legal representative, to
advertise the same in such manner as it shall require and/or 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 6.05. Record Holder of Shares. 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.
SECTION 6.06. Determination of Stockholders of Record. In order that the
---------------------------------------
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Corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty nor less than ten days before the
date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
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
receive payment of any dividend or other distribution or allotment of any rights
of 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.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS AND
OTHER AUTHORIZED REPRESENTATIVES
----------------------------------------------
SECTION 7.01. Indemnification of Authorized Representatives in Third Party
------------------------------------------------------------
Proceedings. The Corporation shall indemnify any person who was or is an
- -----------
authorized representative of the Corporation, and who was or is a party, or is
threatened to be made a party to any third party proceeding, by reason of the
fact that such person was or is an authorized representative of the Corporation,
against expenses, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such third
party proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal third party proceeding, had no
reasonable cause to believe such conduct was unlawful. The termination of any
third party proceeding by judgment, order, settlement, indictment, conviction or
upon a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that the authorized representative did not act in good faith and in
a manner which such person reasonably believed to be in or not opposed to, the
best interests of the Corporation, and, with respect to any criminal third party
proceeding, had reasonable cause to believe that such conduct
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was unlawful.
SECTION 7.02. Indemnification of Authorized Representatives in Corporate
----------------------------------------------------------
Proceedings. The Corporation shall indemnify any person who was or is an
- -----------
authorized representative of the Corporation and who was or is a party or is
threatened to be made a party to any corporate proceeding, by reason of the fact
that such person was or is an authorized representative of the Corporation,
against expenses actually and reasonably incurred by such person in connection
with the defense or settlement of such corporate action if such person acted in
good faith and in a manner reasonably believed to be in, or not opposed to, the
best interests of the Corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery or the court in which such corporate proceeding was pending
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such authorized representative is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
SECTION 7.03. Mandatory Indemnification of Authorized Representatives. To
-------------------------------------------------------
the extent that an authorized representative of the Corporation has been
successful on the merits or otherwise in defense of any third party or corporate
proceeding or in defense of any claim, issue or matter therein, such person
shall be indemnified against expenses actually and reasonably incurred by such
person in connection therewith.
SECTION 7.04. Determination of Entitlement to Indemnification. Any
-----------------------------------------------
indemnification under Section 7.01, 7.02 or 7.03 of this Article (unless ordered
by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the authorized representative
is proper in the circumstances because such person has either met the applicable
standard of conduct set forth in Section 7.01 or 7.02 or has been successful on
the merits or otherwise as set forth in Section 7.03 and that the amount
requested has been actually and reasonably incurred. Such determination shall
be made:
(1) By the Board of Directors by a majority of a quorum consisting of
directors who were not parties to such third party or corporate proceeding, or
(2) If such a quorum is not obtainable, or, even if obtainable, a majority
vote of such a quorum so directs, by independent legal counsel in a written
opinion, or
(3) By the stockholders.
SECTION 7.05. Advancing Expenses.
------------------
(1) Expenses actually and reasonably incurred in defending a third party or
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corporate proceeding shall be paid on behalf of a director or other authorized
representative by the Corporation in advance of the final disposition of such
third party or corporate proceeding upon receipt of an undertaking by or on
behalf of the director or other authorized representative to repay such amount
if it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article.
(2) The financial ability of any director or other authorized
representative to make a repayment contemplated by this Section 7.05 shall not
be a prerequisite to the making of an advance.
SECTION 7.06. Definitions. For purposes of this Article VII:
-----------
(1) "authorized representative" shall mean a director or officer of the
Corporation, or a person serving at the request of the Corporation as a
director, officer, or trustee, of another corporation, partnership, joint
venture, trust or other enterprise;
(2) "corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation of merger which, if its separate existence had
continued, would have had power and authority to indemnify its directors,
officers, 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 the provisions of this
Article with respect to the resulting or surviving corporation as such person
would have with respect to such constituent corporation if its separate
existence had continued;
(3) "corporate proceeding" shall mean any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in
its favor or investigative proceeding by the Corporation;
(4) "criminal third party proceeding" shall include any action or
investigation which could or does lead to a criminal third party proceeding;
(5) "expenses" shall include attorneys' fees and disbursements;
(6) "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan;
(7) "not opposed to the best interests of the Corporation" shall include
actions
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taken in good faith and in a manner the authorized representative reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan;
(8) "other enterprises" shall include employee benefit plans;
(9) "party" shall include the giving of testimony or similar involvement;
(10) "serving at the request of the Corporation" shall include any service
as a director, officer or employee of the Corporation which imposes duties on,
or involves services by, such director, officer or employee with respect to an
employee benefit plan, its participants, or beneficiaries; and
(11) "third party proceeding" shall mean 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.
SECTION 7.07. Insurance. The Corporation may purchase and maintain
---------
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
such person and incurred by such person in any such capacity, or arising out of
such person's status as such, whether or not the Corporation would have the
power or the obligation to indemnify such person against such liability under
the provisions of this Article.
SECTION 7.08. Scope of Article. The indemnification of authorized
----------------
representatives and advancement of expenses, as authorized by the preceding
provisions of this Article, shall not be deemed exclusive of any other rights to
which those seeking indemnification or advancement of expenses may be entitled
under any statute, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in another
capacity. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be an
authorized representative and shall inure to the benefit of the heirs, executors
and administrators of such a person.
SECTION 7.09. Reliance on Provisions. Each person who shall act as an
----------------------
authorized representative of the Corporation shall be deemed to be doing so in
reliance upon rights of indemnification provided by this Article, with the same
effect as if such person and the Corporation entered into a binding contract
under which the Corporation agreed to provide the indemnification provided by
this Article VII.
ARTICLE VIII
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GENERAL PROVISIONS
------------------
SECTION 8.01. 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. 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, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose 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.
SECTION 8.02. Contracts. Except as otherwise provided in these By-laws,
---------
the Board of Directors may authorize any officer or officers including the
chairman and vice chairman of the Board of Directors, or any agent or agents, to
enter into any contract or to execute or deliver any instrument on behalf of the
Corporation and such authority may be general or confined to specific instances.
SECTION 8.03. Checks. All checks, notes, bills of exchange or other
------
orders in writing shall be signed by the president, any vice president, the
treasurer and such other person or persons as the Board of Directors may from
time to time designate.
SECTION 8.04. Corporate Seal. The corporate seal shall have inscribed
--------------
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or in any other manner reproduced.
SECTION 8.05. Deposits. All funds of the Corporation shall be deposited
--------
from time to time to the credit of the Corporation in such banks, trust
companies, or other depositories as the Board of Directors may approve or
designate, and all such funds shall be withdrawn only upon checks signed by such
one or more officers or employees as the Board of Directors shall from time to
time determine.
SECTION 8.06. Corporate Records. Every stockholder shall, upon written
-----------------
demand under oath stating the purpose thereof, have a right to examine, in
person or by agent or attorney, during the usual hours for business, for any
proper purpose, the stock ledger, books or records of account, and records of
the proceedings of the stockholders and directors, and make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or
other agent shall be the
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person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which authorizes the
attorney or other agent to so act on behalf of the stockholder. The demand under
oath shall be directed to the Corporation at its registered office in Delaware
or at its principal place of business. Where the stockholder seeks to inspect
the books and records of the Corporation, other than its stock ledger or list of
stockholders, the stockholder shall first establish (1) compliance with the
provisions of this section respecting the form and manner of making demand for
inspection of such document; and (2) that the inspection sought is for a proper
purpose. Where the stockholder seeks to inspect the stock ledger or list of
stockholders of the Corporation and has complied with the provisions of this
section respecting the form and manner of making demand for inspection of such
documents, the burden of proof shall be upon the Corporation to establish that
the inspection sought is for an improper purpose.
Any director shall have the right to examine the Corporation's stock
ledger, a list of its stockholders and its other books and records for a purpose
reasonably related to his or her position as a director. The court may
summarily order the Corporation to permit the director to inspect any and all
books and records, the stock ledger and the stock list and to make copies or
extracts therefrom. The court may, in its discretion, prescribe any limitations
or conditions with reference to the inspection, or award such other and further
relief as the court may deem just and proper.
SECTION 8.07. Amendment of By-laws. These By-laws may be amended, added
--------------------
to, rescinded or repealed at any meeting of the Board of Directors or of the
stockholders, provided that notice of the proposed change was given in the
--------
notice of the meeting and, in the case of the Board of Directors, in a notice
given no less than twenty-four hours prior to the meeting; provided, however,
-----------------
that in the case of amendments by stockholders, notwithstanding any other
provisions of these By-laws or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote of the holders
of any series of Preferred Stock or any other series or class of stock set forth
in the Certificate of Incorporation which is required by law, the Certificate of
Incorporation or these By-laws, the affirmative vote of the holders of at least
66 2/3% of the voting power of the then outstanding shares of the Corporation
entitled to vote generally in the election of directors, present or represented
by proxy, voting together as a single class, shall be required to alter, amend
or repeal Sections 2.03, 2.08, 2.10, 3.02, 3.03, 3.05, 8.07 and Article VII of
these By-laws.
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