EXHIBIT 3.2
BYLAWS
OF
HOSPITALITY MARKETING CONCEPTS INC.,
A DELAWARE CORPORATION
i
TABLE OF CONTENTS
ARTICLE I - Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Registered Office. . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Other Offices. . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - Stockholders' Meetings. . . . . . . . . . . . . . . . . . . . . 1
Section 2.1 Place of Meetings. . . . . . . . . . . . . . . . . . . . 1
Section 2.2 Annual Meetings. . . . . . . . . . . . . . . . . . . . . 1
Section 2.3 Special Meetings . . . . . . . . . . . . . . . . . . . . 1
Section 2.4 Notice of Meetings . . . . . . . . . . . . . . . . . . . 2
Section 2.5 Quorum and Voting. . . . . . . . . . . . . . . . . . . . 2
Section 2.6 Voting Rights. . . . . . . . . . . . . . . . . . . . . . 3
Section 2.7 Voting Procedures and Inspectors of Elections. . . . . . 4
Section 2.8 List of Stockholders.. . . . . . . . . . . . . . . . . . 5
Section 2.9 Stockholder Proposals at Annual Meetings.. . . . . . . . 5
Section 2.10 Nominations of Persons for Election to the Board of
Directors. . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.11 Action Without Meeting . . . . . . . . . . . . . . . . . 7
ii
ARTICLE III - Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1 Number and Term of Office. . . . . . . . . . . . . . . . 7
Section 3.2 Powers . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.3 Vacancies. . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.4 Resignations and Removals. . . . . . . . . . . . . . . . 9
Section 3.5 Meetings.. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.6 Quorum and Voting. . . . . . . . . . . . . . . . . . . .10
Section 3.7 Action Without Meeting . . . . . . . . . . . . . . . . .10
Section 3.8 Fees and Compensation. . . . . . . . . . . . . . . . . .10
Section 3.9 Committees . . . . . . . . . . . . . . . . . . . . . . .11
ARTICLE IV - Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . .12
Section 4.1 Officers Designated. . . . . . . . . . . . . . . . . . .12
Section 4.2 Tenure and Duties of Officers. . . . . . . . . . . . . .12
ARTICLE V - Execution of Corporate Instruments, and Voting of Securities
Owned by the Corporation. . . . . . . . . . . . . . . . . . . . . . . .13
Section 5.1 Execution of Corporate Instruments.. . . . . . . . . . .13
Section 5.2 Voting of Securities Owned by Corporation. . . . . . . .14
iii
ARTICLE VI - Shares of Stock . . . . . . . . . . . . . . . . . . . . . . . .14
Section 6.1 Form and Execution of Certificates.. . . . . . . . . . .14
Section 6.2 Lost Certificates. . . . . . . . . . . . . . . . . . . .15
Section 6.3 Transfers. . . . . . . . . . . . . . . . . . . . . . . .15
Section 6.4 Fixing Record Dates. . . . . . . . . . . . . . . . . . .15
Section 6.5 Registered Stockholders. . . . . . . . . . . . . . . . .16
ARTICLE VII - Other Securities of the Corporation. . . . . . . . . . . . . .16
ARTICLE VIII - Corporate Seal. . . . . . . . . . . . . . . . . . . . . . . .17
ARTICLE IX - Indemnification . . . . . . . . . . . . . . . . . . . . . . . .17
Section 9.1 Indemnification in Actions, Suits or Proceedings Other
Than Those by or in Right of the Corporation . . . . . .17
Section 9.2 Indemnification in Actions, Suits or Proceedings by
or in the Right of the Corporation.. . . . . . . . . . .18
Section 9.3 Authorization of Indemnification . . . . . . . . . . . .19
Section 9.4. Advancement of Expenses. . . . . . . . . . . . . . . . .19
Section 9.5 Provisions Nonexclusive. . . . . . . . . . . . . . . . .19
Section 9.6 Authority to Insure. . . . . . . . . . . . . . . . . . .20
Section 9.7 Survival of Rights . . . . . . . . . . . . . . . . . . .20
iv
Section 9.8 Settlement of Claims . . . . . . . . . . . . . . . . . .20
Section 9.9 Effect of Amendment. . . . . . . . . . . . . . . . . . .20
ARTICLE X - Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
ARTICLE XI - Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . .21
v
BYLAWS
OF
HOSPITALITY MARKETING CONCEPTS INC.,
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE.
The registered office of the corporation in the State of Delaware
shall be in the City of Wilmington, County of New Castle.
SECTION 1.2 OTHER OFFICES.
The corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors may from
time to time determine or the business of the corporation may require.
ARTICLE II
STOCKHOLDERS' MEETINGS
SECTION 2.1 PLACE OF MEETINGS.
Meetings of the stockholders of the corporation shall be held at
such place, either within or without the State of Delaware, as may be
designated from time to time by the Board of Directors.
SECTION 2.2 ANNUAL MEETINGS.
The annual meetings of the stockholders of the corporation,
commencing with the year 1999, for the purpose of election of directors and
for such other business as may lawfully come before it, shall be held on such
date and at such time as may be designated from time to time by the Board of
Directors.
SECTION 2.3 SPECIAL MEETINGS.
Special meetings of the stockholders of the corporation may be
called, for any purpose or purposes, by the President and Chief Executive
Officer or by a majority of the Board of Directors
1
at any time.
SECTION 2.4 NOTICE OF MEETINGS.
(a) Except as otherwise provided by law or the Certificate of Incorporation,
written notice of each meeting of stockholders, specifying the place, date
and hour and purpose or purposes of the meeting, shall be given not less
than ten nor more than sixty days before the date of the meeting to each
stockholder entitled to vote thereat, directed to his address as it appears
upon the books of the corporation; except that where the matter to be acted
on is a merger or consolidation of the corporation or a sale, lease or
exchange of all or substantially all of its assets, such notice shall be
given not less than twenty (20) nor more than sixty (60) days prior to such
meeting.
(b) If at any meeting action is proposed to be taken which, if taken, would
entitle shareholders fulfilling the requirements of Section 262(d) of the
Delaware General Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of that
purpose and to that effect and shall be accompanied by a copy of that
statutory section.
(c) When a meeting is adjourned to another time or place, notice need not be
given of the adjourned meeting if the time and place thereof are announced
at the meeting at which the adjournment is taken unless the adjournment is
for more than thirty days, or unless after the adjournment a new record
date is fixed for the adjourned meeting, in which event a notice of the
adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
(d) Notice of the time, place and purpose of any meeting of stockholders may be
waived in writing, either before or after such meeting, and to the extent
permitted by law, will be waived by any stockholder by his attendance
thereat, in person or by proxy. Any stockholder so waiving notice of such
meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
(e) Unless and until voted, every proxy shall be revocable at the pleasure of
the person who executed it or of his legal representatives or assigns,
except in those cases where an irrevocable proxy permitted by statute has
been given.
SECTION 2.5 QUORUM AND VOTING.
(a) At all meetings of stockholders, except where otherwise provided by law,
the Certificate of Incorporation, or these Bylaws, the presence, in person
or by proxy duly authorized, of the holders of a majority of the
outstanding shares of stock entitled to vote shall constitute a quorum for
the transaction of business. Shares, the voting of which at said meeting
have been enjoined, or which for any reason cannot be lawfully voted at
such meeting, shall not be counted to determine a quorum at said meeting.
In the absence of a quorum, any meeting
2
of stockholders may be adjourned, from time to time, by vote of the holders
of a majority of the shares represented thereat, but no other business
shall be transacted at such meeting. At such adjourned meeting at which a
quorum is present or represented any business may be transacted which might
have been transacted at the original meeting. The stockholders present at
a duly called or convened meeting, at which a quorum is present, may
continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
(b) Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, all action taken by the holders of a majority of the voting
power represented at any meeting at which a quorum is present shall be
valid and binding upon the corporation.
(c) Where a separate vote by a class or classes is required, a majority of the
outstanding shares of such class or classes, present in person or
represented by proxy, shall constitute a quorum entitled to take action
with respect to that vote on that matter and the affirmative vote of the
majority of shares of such class or classes present in person or
represented by proxy at the meeting shall be the act of such class.
SECTION 2.6 VOTING RIGHTS.
(a) Except as otherwise provided by law, only persons in whose names shares
entitled to vote stand on the stock records of the corporation on the
record date for determining the stockholders entitled to vote at said
meeting shall be entitled to vote at such meeting. Shares standing in the
names of two or more persons shall be voted or represented in accordance
with the determination of the majority of such persons, or, if only one of
such persons is present in person or represented by proxy, such person
shall have the right to vote such shares and such shares shall be deemed to
be represented for the purpose of determining a quorum.
(b) Every person entitled to vote or execute consents shall have the right to
do so either in person or by an agent or agents authorized by a written
proxy executed by such person or his duly authorized agent, which proxy
shall be filed with the Secretary of the corporation at or before the
meeting at which it is to be used. Said proxy so appointed need not be a
stockholder. No proxy shall be voted on after three years from its date
unless the proxy provides for a longer period.
(c) Without limiting the manner in which a stockholder may authorize another
person or persons to act for him as proxy pursuant to subsection (b) of
this section, the following shall constitute a valid means by which a
stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing another person or
persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent
signing such writing or causing his or her signature to be affixed to
such writing by any reasonable means including, but not
3
limited to, by facsimile signature.
(2) A stockholder may authorize another person or persons to act for him
as proxy by transmitting or authorizing the transmission of a
telegram, cablegram, or other means of electronic transmission to the
person who will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly authorized
by the person who will be the holder of the proxy to receive such
transmission, provided that any such telegram, cablegram or other
means of electronic transmission must either set forth or be submitted
with information from which it can be determined that the telegram,
cablegram or other electronic transmission was authorized by the
stockholder. Such authorization can be established by the signature
of the stockholder on the proxy, either in writing or by a signature
stamp or facsimile signature, or by a number or symbol from which the
identity of the stockholder can be determined, or by any other
procedure deemed appropriate by the inspectors or other persons making
the determination as to due authorization.
If it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors,
such other persons making that determination shall specify the information
upon which they relied.
(d) Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission created pursuant to subsection (c) of this section
may be substituted or used in lieu of the original writing or transmission
for any and all purposes for which the original writing or transmission
could be used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original
writing or transmission.
SECTION 2.7 VOTING PROCEDURES AND INSPECTORS OF ELECTIONS.
(a) The corporation shall, in advance of any meeting of stockholders, appoint
one or more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding
at the meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his duties, shall
take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding and the
voting power of each, (ii) determine the shares represented at a meeting
and the validity of proxies and ballots, (iii) count all votes and ballots,
(iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors,
and (v) certify their determination of the number of shares represented at
the meeting, and their
4
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the
duties of the inspectors.
(c) The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the Inspectors after the
closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 212(c)(2) of the Delaware General Corporation Law, ballots and the
regular books and records of the corporation, except that the inspectors
may consider other reliable information for the limited purpose of
reconciling proxies and ballots submitted by or on behalf of banks,
brokers, their nominees or similar persons which represent more votes than
the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider
other reliable information for the limited purpose permitted herein, the
inspectors at the time they make their certification pursuant to subsection
(b)(v) of this section shall specify the precise information considered by
them including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
SECTION 2.8 LIST OF STOCKHOLDERS.
The officer who has charge of the stock 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 said meeting, arranged in
alphabetical order, showing 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 ten days prior to the meeting, either
at a place within the city where the meeting is to be held and which place shall
be specified in the notice of the meeting, or, if not specified, at the place
where said meeting is to be held, and the list shall be produced and kept at the
time and place of meeting during the whole time thereof, and may be inspected by
any stockholder who is present.
SECTION 2.9 STOCKHOLDER PROPOSALS AT ANNUAL MEETINGS.
At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, otherwise properly brought before the meeting by or at
the direction of the Board of Directors or otherwise properly brought before the
meeting by a stockholder. In addition to any other applicable requirements, for
business to be properly brought
5
before an annual meeting by a stockholder, the stockholder must have given
timely notice thereof in writing to the Secretary of the corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation, not less than 60 days nor
more than 90 days prior to the meeting; provided, however, that in the event
that less than 70 days' notice or prior public disclosure of the date of the
meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the 10th
day following the day on which such notice of the date of the annual meeting
was mailed or such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting, (i) a brief description of the business desired to
be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (ii) the name and record address of the
stockholder proposing such business, (iii) the class and number of shares of
the corporation which are beneficially owned by the stockholder, and (iv) any
material interest of the stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2.9, provided, however, that nothing in
this Section 2.9 shall be deemed to preclude discussion by any stockholder of
any business properly brought before the annual meeting in accordance with
such procedure.
The Chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 2.9, and if he
should so determine, he shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
SECTION 2.10 NOMINATIONS OF PERSONS FOR ELECTION TO THE BOARD OF DIRECTORS.
In addition to any other applicable requirements, only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors of the corporation may be made at a meeting of stockholders by or
at the direction of the Board of Directors, by any nominating committee or
person appointed by the Board of Directors or by any stockholder of the
corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 2.10. Such
nominations, other than those made by or at the direction of the Board of
Directors, shall be made pursuant to timely notice in writing to the
Secretary of the corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive offices of the
corporation not less than 30 days nor more than 60 days prior to the meeting;
provided, however, that in the event that less than 40 days' notice or prior
public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which
such notice of the date of the meeting was mailed or such public disclosure
was made. Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or re-election as a
director, (i) the name, age, business address and residence address of the
person, (ii) the principal occupation or employment of the person, (iii) the
class and number of shares of the
6
corporation which are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a
under the Securities Exchange Act of 1934; and (b) as to the stockholder
giving the notice, (i) the name and record address of the stockholder, and
(ii) the class and number of shares of the corporation which are beneficially
owned by the stockholder. The corporation may require any proposed nominee
to furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to serve as
a director of the corporation. No person shall be eligible for election as a
director of the corporation unless nominated in accordance with the
procedures set forth herein. These provisions shall not apply to nomination
of any persons entitled to be separately elected by holders of preferred
stock.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
SECTION 2.11 ACTION WITHOUT MEETING.
Unless otherwise provided in the Certificate of Incorporation, any
action required by statute to be taken at any annual or special meeting of
stockholders of the corporation, or any action which may be taken at any
annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, are signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted. To be effective, a
written consent must be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer
or agent of the corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless, within
sixty days of the earliest dated consent delivered in the manner required by
this Section to the corporation, written consents signed by a sufficient
number of holders to take action are delivered to the corporation in
accordance with this Section. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be
given to those stockholders who have not consented in writing.
Notwithstanding the foregoing, following the effectiveness of the
registration of any class of stock of the corporation pursuant to the
requirements of the Securities Act of 1933, as amended, any action required
or permitted to be taken by the stockholders of the corporation must be
effected at a duly called annual or special meeting of stockholders, and may
not be effected by any consent in writing of such stockholders.
ARTICLE III
DIRECTORS
7
SECTION 3.1 NUMBER AND TERM OF OFFICE.
The number of directors of the corporation shall not be less than three
(3) nor more than eleven (11) until changed by amendment of the Certificate
of Incorporation or by a Bylaw amending this Section 3.1 duly adopted by the
vote or written consent of holders of a majority of the outstanding shares or
by the Board of Directors. The exact number of directors shall be fixed from
time to time, within the limits specified in the Certificate of Incorporation
or in this Section 3.1, by resolution of the Board of Directors.
With the exception of the initial Board of Directors, which shall be
elected by the incorporator, and except as provided in Section 3.3 of this
Article III, the directors shall be elected by a plurality vote of the shares
represented in person or by proxy, at the stockholders' annual meeting in
each year and entitled to vote on the election of directors. Elected
directors shall hold office until the next annual meeting for the years in
which their terms expire and until their successors shall be duly elected and
qualified. Directors need not be stockholders. If, for any reason, the Board
of Directors shall not have been elected at an annual meeting, they may be
elected as soon thereafter as convenient at a special meeting of the
stockholders called for that purpose in the manner provided in these Bylaws.
The directors shall be divided into three classes, designated Class I,
Class II, and Class III, as nearly equal in number as the then total number
of directors permits. Each initial director in Class I shall hold office for
a term expiring at the 2001 annual meeting of stockholders, each initial
director in Class II shall hold office for a term expiring at the 2000 annual
meeting of stockholders, and each initial director in Class III shall hold
office for a term expiring at the 1999 annual meeting of stockholders. At
each succeeding annual meeting of stockholders beginning in 1999, successors
to the class of directors whose terms expire at that annual meeting shall be
elected for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional directors of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with
the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of Preferred Stock issued by the corporation shall have the
right, voting separately by class or series, to elect directors at an annual
or special meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed by the
terms of these Bylaws applicable thereto, and such directors so elected shall
not be divided into classes pursuant to this Section 3.1 unless expressly
provided by such terms.
Any amendment, change or repeal of this Section 3.1, or any other
amendment to these Bylaws that will have the effect of permitting
circumvention of or modifying this Section 3.1, shall require the affirmative
vote, at a stockholders' meeting, of the holders of at least 66 2/3% of the
then outstanding shares of stock of the corporation entitled to vote.
8
SECTION 3.2 POWERS.
The powers of the corporation shall be exercised, its business conducted
and its property controlled by or under the direction of the Board of
Directors.
SECTION 3.3 VACANCIES.
Vacancies and newly created directorships resulting from any increase in
the authorized number of directors may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director, and each director so elected shall hold office for the unexpired
portion of the term of the director whose place shall be vacant, and until
his successor shall have been duly elected and qualified. A vacancy in the
Board of Directors shall be deemed to exist under this section in the case of
the death, removal or resignation of any director, or if the stockholders
fail at any meeting of stockholders at which directors are to be elected
(including any meeting referred to in Section 3.4 below) to elect the number
of directors then constituting the whole Board.
SECTION 3.4 RESIGNATIONS AND REMOVALS.
(a) Any director may resign at any time by delivering his written resignation
to the Secretary, such resignation to specify whether it will be effective
at a particular time, upon receipt by the Secretary or at the pleasure of
the Board of Directors. If no such specification is made it shall be
deemed effective at the pleasure of the Board of Directors. When one or
more directors shall resign from the Board, effective at a future date, a
majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office for the unexpired
portion of the term of the director whose place shall be vacated and until
his successor shall have been duly elected and qualified.
(b) At a special meeting of stockholders called for the purpose in the manner
herein above provided, the Board of Directors, or any individual director,
may be removed from office, with or without cause, and a new director or
directors elected by a vote of stockholders holding a majority of the
outstanding shares entitled to vote at an election of directors.
SECTION 3.5 MEETINGS.
(a) The annual meeting of the Board of Directors shall be held immediately
after the annual stockholders' meeting and at the place where such meeting
is held or at the place announced by the Chairman at such meeting. No
notice of an annual meeting of the Board of Directors shall be necessary
and such meeting shall be held for the purpose of electing officers and
transacting such other business as may lawfully come before it.
(b) Regular meetings of the Board of Directors may be held at any place within
or without the State of Delaware which has been designated by resolutions
of the Board of Directors or the
9
written consent of all directors.
(c) Special meetings of the Board of Directors may be held at any time and
place within or without the State of Delaware whenever called by the
Chairman of the Board or, if there is no Chairman of the Board, by the
President and the Chief Executive Officer, or by any of the directors.
(d) Written notice of the time and place of all regular and special meetings of
the Board of Directors shall be delivered personally to each director or
sent by telegram or facsimile transmission at least 48 hours before the
start of the meeting, or sent by first class mail at least 120 hours before
the start of the meeting. Notice of any meeting may be waived in writing
at any time before or after the meeting and will be waived by any director
by attendance thereat.
SECTION 3.6 QUORUM AND VOTING.
(a) A quorum of the Board of Directors shall consist of a majority of the exact
number of directors fixed from time to time in accordance with Section 3.1
of Article III of these Bylaws, but not less than one; provided, however,
at any meeting whether a quorum be present or otherwise, a majority of the
directors present may adjourn from time to time until the time fixed for
the next regular meeting of the Board of Directors, without notice other
than by announcement at the meeting.
(b) At each meeting of the Board at which a quorum is present, all questions
and business shall be determined by a vote of a majority of the directors
present, unless a different vote be required by law, the Certificate of
Incorporation, or these Bylaws.
(c) Any member of the Board of Directors, or of any committee thereof, may
participate in a meeting by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means
shall constitute presence in person at such meeting.
(d) The transactions of any meeting of the Board of Directors, or any committee
thereof, however called or noticed, or wherever held, shall be as valid as
though had at a meeting duly held after regular call and notice, if a
quorum be present and if, either before or after the meeting, each of the
directors not present shall sign a written waiver of notice, or a consent
to holding such meeting, or an approval of the minutes thereof. All such
waivers, consents or approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
SECTION 3.7 ACTION WITHOUT MEETING.
Unless otherwise restricted by the Certificate of Incorporation or these
Bylaws, any action required or permitted to be taken at any meeting of the Board
of Directors or of any committee thereof may be taken without a meeting, if all
members of the Board or of such committee, as the
10
case may be, consent thereto in writing, and such writing or writings are
filed with the minutes of proceedings of the Board or committee.
SECTION 3.8 FEES AND COMPENSATION.
Directors and members of committees may receive such compensation, if
any, for their services, and such reimbursement for expenses, as may be fixed
or determined by resolution of the Board of Directors.
SECTION 3.9 COMMITTEES.
(a) EXECUTIVE COMMITTEE: The Board of Directors may appoint an Executive
Committee of not less than one member, each of whom shall be a
director. The Executive Committee, to the extent permitted by law,
shall have and may exercise when the Board of Directors is not in
session all powers of the Board in the management of the business and
affairs of the corporation, except such committee shall not have the
power or authority to amend these Bylaws or to approve or recommend to
the stockholders any action which must be submitted to stockholders
for approval under the Delaware General Corporation Law.
(b) OTHER COMMITTEES: The Board of Directors may, by resolution passed by
a majority of the whole Board, from time to time appoint such other
committees as may be permitted by law. Such other committees
appointed by the Board of Directors shall have such powers and perform
such duties as may be prescribed by the resolution or resolutions
creating such committee, but in no event shall any such committee have
the powers denied to the Executive Committee in these Bylaws.
(c) TERM: The members of all committees of the Board of Directors shall
serve a term coexistent with that of the Board of Directors which
shall have appointed such committee. The Board, subject to the
provisions of subsections (a) or (b) of this Section 3.9, may at any
time increase or decrease the number of members of a committee or
terminate the existence of a committee; provided, that no committee
shall consist of less than one member. The membership of a committee
member shall terminate on the date of his death or voluntary
resignation, but the Board may at any time for any reason remove any
individual committee member and the Board may fill any committee
vacancy created by death, resignation, removal or increase in the
number of members of the committee. 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, and, in addition, in the absence or disqualification of
any member of a 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 member of
the Board of Directors to act at the meeting in the place of any such
absent or disqualified member.
(d) MEETINGS: Unless the Board of Directors shall otherwise provide,
regular meetings of the Executive Committee or any other committee
appointed pursuant to this Section 3.9 shall be held at such times and
places as are determined by the Board of Directors, or by any such
committee, and when notice thereof has been given to each member of
such committee, no further notice of such
11
regular meetings need be given thereafter; special meetings of any
such committee may be held at any place which has been designated
from time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director who
is a member of such committee, upon written notice to the members of
such committee of the time and place of such special meeting given in
the manner provided for the giving of written notice to members of the
Board of Directors of the time and place of special meetings of the
Board of Directors. Notice of any special meeting of any committee
may be waived in writing at any time after the meeting and will be
waived by any director by attendance thereat. A majority of the
authorized number of members of any such committee shall constitute
a quorum for the transaction of business, and the act of a majority
of those present at any meeting at which a quorum is present shall be
the act of such committee.
ARTICLE IV
OFFICERS
SECTION 4.1 OFFICERS DESIGNATED.
The officers of the corporation shall be a President and Chief Executive
Officer, a Secretary, and a Treasurer. The Board of Directors or the
President and Chief Executive Officer may also appoint a Chairman of the
Board, one or more Vice-Presidents, assistant secretaries, assistant
treasurers, and such other officers and agents with such powers and duties as
it or he shall deem necessary. The order of the seniority of the Vice-
Presidents shall be in the order of their nomination, unless otherwise
determined by the Board of Directors. The Board of Directors may assign such
additional titles to one or more of the officers as they shall deem
appropriate. Any one person may hold any number of offices of the
corporation at any one time unless specifically prohibited therefrom by law.
The salaries and other compensation of the officers of the corporation shall
be fixed by or in the manner designated by the Board of Directors.
SECTION 4.2 TENURE AND DUTIES OF OFFICERS.
(a) GENERAL: All officers shall hold office at the pleasure of the Board of
Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the
Board of Directors may be removed at any time by the Board of Directors.
If the office of any officer becomes vacant for any reason, the vacancy may
be filled by the Board of Directors. Nothing in these Bylaws shall be
construed as creating any kind of contractual right to employment with the
corporation.
(b) DUTIES OF THE CHAIRMAN OF THE BOARD OF DIRECTORS: The Chairman of the
Board of Directors (if there be such an officer appointed), when present,
shall preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall designate
from time to time.
12
(c) DUTIES OF PRESIDENT AND CHIEF EXECUTIVE OFFICER: The President and Chief
Executive Officer shall be the chief executive officer of the corporation
and shall preside at all meetings of the stockholders and at all meetings
of the Board of Directors, unless the Chairman of the Board of Directors
has been appointed and is present at such meetings. The President and
Chief Executive Officer shall perform such other duties and have such other
powers as the Board of Directors shall designate from time to time.
(d) DUTIES OF VICE-PRESIDENTS: The Vice-Presidents, in the order of their
seniority, may assume and perform the duties of the President and Chief
Executive Officer in the absence or disability of the President or whenever
the office of the President and Chief Executive Officer is vacant. The
Vice-President shall perform such other duties and have such other powers
as the Board of Directors or the President and Chief Executive Officer
shall designate from time to time.
(e) DUTIES OF SECRETARY: The Secretary shall attend all meetings of the
shareholders and of the Board of Directors and any committee thereof, and
shall record all acts and proceedings thereof in the minute book of the
corporation. The Secretary shall give notice, in conformity with these
Bylaws, of all meetings of the stockholders, and of all meetings of the
Board of Directors and any Committee thereof requiring notice. The
Secretary shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time. The President and
Chief Executive Officer may direct any Assistant Secretary to assume and
perform the duties of the Secretary in the absence or disability of the
Secretary, and each Assistant Secretary shall perform such other duties and
have such other powers as the Board of Directors or the President and Chief
Executive Officer shall designate from time to time.
(f) DUTIES OF TREASURER: The Treasurer shall keep or cause to be kept the
books of account of the corporation in a thorough and proper manner, and
shall render statements of the financial affairs of the corporation in such
form and as often as required by the Board of Directors or the President
and Chief Executive Officer. The Treasurer, subject to the order of the
Board of Directors, shall have the custody of all funds and securities of
the corporation. The Treasurer shall perform all other duties commonly
incident to his office and shall perform such other duties and have such
other powers as the Board of Directors or the President and Chief Executive
Officer shall designate from time to time. The President and Chief
Executive Officer may direct any Assistant Treasurer to assume and perform
the duties of the Treasurer in the absence or disability of the Treasurer,
and each Assistant Treasurer shall perform such other duties and have such
other powers as the Board of Directors or the President and Chief Executive
Officer shall designate from time to time.
ARTICLE V
EXECUTION OF CORPORATE INSTRUMENTS, AND VOTING OF SECURITIES OWNED BY THE
CORPORATION
13
SECTION 5.1 EXECUTION OF CORPORATE INSTRUMENTS.
(a) The Board of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other person or persons, to
execute any corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and such
execution or signature shall be binding upon the corporation.
(b) Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, formal contracts of the corporation, promissory
notes, deeds of trust, mortgages and other evidences of indebtedness of the
corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the
corporation, shall be executed, signed or endorsed by the Chairman of the
Board (if there be such an officer appointed) or by the President and Chief
Executive Officer; such documents may also be executed by any
Vice-President and by the Secretary or Treasurer or any Assistant Secretary
or Assistant Treasurer. All other instruments and documents requiring the
corporate signature, but not requiring the corporate seal, may be executed
as aforesaid or in such other manner as may be directed by the Board of
Directors.
(c) All checks and drafts drawn on banks or other depositories on funds to the
credit of the corporation, or in special accounts of the corporation, shall
be signed by such person or persons as the Board of Directors shall
authorize so to do.
SECTION 5.2 VOTING OF SECURITIES OWNED BY CORPORATION.
All stock and other securities of other corporations owned or held by
the corporation for itself, or for other parties in any capacity, shall be
voted, and all proxies with respect thereto shall be executed, by the person
authorized so to do by resolution of the Board of Directors or, in the
absence of such authorization, by the Chairman of the Board (if there be such
an officer appointed), or by the President and Chief Executive Officer.
ARTICLE VI
SHARES OF STOCK
SECTION 6.1 FORM AND EXECUTION OF CERTIFICATES.
Certificates for the shares of stock of the corporation shall be in such
form as is consistent with the Certificate of Incorporation and applicable
law. Every holder of stock in the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by, the Chairman of
the Board (if there be such an officer appointed), or by the President and
Chief Executive Officer or any Vice-President and by the Treasurer or
Assistant Treasurer or the Secretary or Assistant Secretary, certifying the
number of shares owned by him in the corporation. Any or all of the
signatures on the certificate may be a facsimile. In case any officer,
transfer agent, or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be
14
such officer, transfer agent, or registrar before such certificate is issued,
it may be issued with the same effect as if he were such officer, transfer
agent, or registrar at the date of issue. If the corporation shall be
authorized to issue more than one class of stock or more than one series of
any class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of the
certificate which the corporation shall issue to represent such class or
series of stock, provided that, except as otherwise provided in Section 202
of the Delaware General Corporation Law, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock,
a statement that the corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
SECTION 6.2 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 or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate of stock to be
lost 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
or destroyed certificate or certificates, or his legal representative, to
indemnify the corporation in such manner as it shall require and/or to give
the corporation a surety bond in such form and amount 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 or destroyed.
SECTION 6.3 TRANSFERS.
Transfers of record of shares of stock of the corporation shall be made
only upon its books by the holders thereof, in person or by attorney duly
authorized, and upon the surrender of a certificate or certificates for a
like number of shares, properly endorsed.
SECTION 6.4 FIXING RECORD DATES.
(a) In order that the corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which record date shall not be
more than 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 date on which the meeting is held.
A determination of stockholders of record entitled notice of or to vote at
a meeting of stockholders shall apply
15
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date has been fixed by the Board of
Directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by
the Board of Directors is required by 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 Delaware, its principal place of
business, or an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded.
Delivery made to a corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall
be at the close of business on the day on which the Board of Directors
adopts the resolution taking such prior action.
(c) In order that the corporation may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any
rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted, and which record date shall be not more than sixty
days prior to such action. If no record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
SECTION 6.5 REGISTERED STOCKHOLDERS.
The corporation shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares to receive dividends,
and to vote as such owner, and 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.
ARTICLE VII
OTHER SECURITIES OF THE CORPORATION
16
All bonds, debentures and other corporate securities of the corporation,
other than stock certificates, may be signed by the Chairman of the Board (if
there be such an officer appointed), or the President and Chief Executive
Officer or any Vice-President or such other person as may be authorized by
the Board of Directors, and the corporate seal impressed thereon or a
facsimile of such seal imprinted thereon and attested by the signature of the
Secretary or an Assistant Secretary, or the Treasurer or an Assistant
Treasurer; provided, however, that where any such bond, debenture or other
corporate security shall be authenticated by the manual signature of a
trustee under an indenture pursuant to which such bond, debenture or other
corporate security shall be issued, the signature of the persons signing and
attesting the corporate seal on such bond, debenture or other corporate
security may be the imprinted facsimile of the signatures of such persons.
Interest coupons pertaining to any such bond, debenture or other corporate
security, so authenticated by a trustee, shall be signed by the Treasurer or
an Assistant Treasurer of the corporation, or such other person as may be
authorized by the Board of Directors, or bear imprinted thereon the facsimile
signature of such person. In case any officer who shall have signed or
attested any bond, debenture or other corporate security, or whose facsimile
signature shall appear thereon or before the bond, debenture or other
corporate security so signed or attested shall have been delivered, ceases to
be an officer of the corporation, such bond, debenture or other corporate
security nevertheless may be adopted by the corporation and issued and
delivered as though the person who signed the same or whose facsimile
signature shall have been used thereon had not ceased to be such officer of
the corporation.
ARTICLE VIII
CORPORATE SEAL
The corporate seal shall consist of a die bearing the name of the
corporation and the state and date of its incorporation. Such seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE
BY OR IN RIGHT OF THE CORPORATION.
(a) To the extent permitted by law, the corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding") (other than an
action by or in the right of the corporation) by reason of the fact that
such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses, liabilities and losses
(including attorneys' fees, judgments, fines, penalties and amounts paid in
settlement, and any interest,
17
assessments or other charges imposed thereon, and any federal, state, local
or foreign taxes imposed on any person as a result of payment received
under this Article) actually and reasonably incurred by such person in
connection with such Proceeding, if such person acted 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
Proceeding, had no reasonable cause to believe that such conduct was
unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which such person reasonably believed
to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal Proceeding, had reasonable cause to believe that
such conduct was unlawful.
(b) To the extent permitted by law, the corporation may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed Proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation) by reason of the fact that such person is or was an
employee or agent of the corporation, or is or was serving at the request
of the corporation as an employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other
enterprise, against expenses, liabilities and losses (including attorneys'
fees, judgments, fines, penalties and amounts paid in settlement, and any
interest, assessments or other charges imposed thereon and any federal,
state, local or foreign taxes imposed on any person as a result of payment
received under this Article) actually and reasonably incurred by such
person in connection with such Proceeding, if such person acted 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 Proceeding, had no reasonable cause to believe that such conduct
was unlawful. The termination of any Proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contenders or its
equivalent, shall not, of itself, create a presumption that the person 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 Proceeding, had reasonable cause to believe that
such conduct was unlawful.
SECTION 9.2 INDEMNIFICATION IN ACTIONS, SUITS OR PROCEEDINGS BY OR IN THE
RIGHT OF THE CORPORATION.
(a) To the extent permitted by law, the corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed Proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
such person is or was a director or officer of the corporation, or is or
was serving at the request of the corporation as a director or officer of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the
defense or settlement of such Proceeding if such person acted in good faith
and in a manner
18
which such person reasonably believed to be in or not opposed to the best
interests of the corporation. No such 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 in which such Proceeding was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
(b) To the extent permitted by law, the corporation may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed Proceeding by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
such person is or was an employee or agent of the corporation, or is or was
serving at the request of the corporation as an employee or agent of
another corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the
defense or settlement of such Proceeding if such person acted 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. No such 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 in which such Proceeding was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such
court shall deem proper.
SECTION 9.3 AUTHORIZATION OF INDEMNIFICATION.
Any indemnification under this Article 9 shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person or persons have met the applicable standard
of conduct set forth in Sections 9.1 and 9.2 hereof. Such determination
shall be made (a) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to Proceeding, or (b) if such a
quorum is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written opinion, or
(c) by a majority of the stockholders entitled to vote generally in the
election of directors.
SECTION 9.4. ADVANCEMENT OF EXPENSES.
The Corporation may advance expenses (including attorneys' fees)
incurred by a director or officer (acting in his or her capacity as such) in
advance of the final disposition of such Proceeding upon the receipt of an
undertaking by or on behalf of the director or officer to repay such amount
if it shall ultimately be determined, by final judicial decision from which
there is no further right to appeal, that such director or officer is not
entitled to indemnification.
The Corporation may advance expenses (including attorneys' fees) incurred
by an employee or
19
agent in advance of the final disposition of such Proceeding upon such terms
and conditions, if any, as the Board of Directors deems appropriate.
SECTION 9.5 PROVISIONS NONEXCLUSIVE.
The rights conferred on any person by this Article shall not be
exclusive of any other rights that such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, agreement,
vote of stockholders or disinterested directors, or otherwise, both as to
action in an official capacity and as to action in another capacity while
holding such office. To the extent that any provision of the Certificate of
Incorporation, agreement or vote of the stockholders or disinterested
directors is inconsistent with these bylaws, the provision, agreement, or
vote shall take precedence.
SECTION 9.6 AUTHORITY TO INSURE.
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, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise) against liability asserted against or incurred by such
person in such capacity or arising from such person's status as such (whether
or not the corporation would have the power to indemnify such person against
such liability).
SECTION 9.7 SURVIVAL OF RIGHTS.
The rights provided by this Article shall continue as to a person who
has ceased to be a director, officer, employee or agent of the corporation
(or has ceased serving at the request of the corporation as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust employee benefit plan or other enterprise)
and shall inure to the benefit of the heirs, executors, and administrators of
such a person.
SECTION 9.8 SETTLEMENT OF CLAIMS.
The corporation shall not be liable to indemnify any person under this
Article (a) for any amounts paid in settlement of any action or claim
effected without the corporation's written consent, which consent shall not
be unreasonably withheld; or (b) for any judicial award if the corporation
was not given a reasonable and timely opportunity, at its expense, to
participate in the defense of such action.
SECTION 9.9 EFFECT OF AMENDMENT.
Any amendment, repeal, or modification of this Article shall not adversely
affect any right or protection of any person covered by this Article existing at
the time of such amendment, repeal, or modification.
20
ARTICLE X
NOTICES
Whenever, under any provisions of these Bylaws, notice is required to be
given to any stockholder, the same shall be given in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his
last known post office address as shown by the stock record of the
corporation or its transfer agent. Any notice required to be given to any
director may be given by the method herein above stated, or by telegram or
other means of electronic transmission, except that such notice other than
one which is delivered personally, shall be sent to such address or (in the
case of facsimile telecommunication) facsimile telephone number as such
director shall have filed in writing with the Secretary of the corporation,
or, in the absence of such filing, to the last known post office address of
such director. An affidavit of mailing, executed by a duly authorized and
competent employee of the corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and address or
the names and addresses of the stockholder or stockholders, director or
directors, to whom any such notice or notices was or were given, and the time
and method of giving the same, shall be conclusive evidence of the statements
therein contained. All notices given by mail, as above provided, shall be
deemed to have been given as at the time of mailing and all notices given by
telegram or other means of electronic transmission shall be deemed to have
been given as at the sending time recorded by the telegraph company or other
electronic transmission equipment operator transmitting the same. It shall
not be necessary that the same method of giving be employed in respect of all
directors, but one permissible method may be employed in respect of any one
or more, and any other permissible method or methods may be employed in
respect of any other or others. The period or limitation of time within
which any stockholder may exercise any option or right, or enjoy any
privilege or benefit, or be required to act, or within which any director may
exercise any power or right, or enjoy any privilege, pursuant to any notice
sent him in the manner above provided, shall not b affected or extended in
any manner by the failure of such a stockholder or such director to receive
such notice. Whenever any notice is required to be given under the
provisions of the Delaware statutes or of the Certificate of Incorporation,
or of these Bylaws, a waiver thereof in writing signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Whenever notice is required to
be given, under any provision of law or of the Certificate of Incorporation
or Bylaws of the corporation, 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
provision of the Delaware General Corporation Law, 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.
21
ARTICLE XI
AMENDMENTS
The Board of Directors shall have the authority to repeal, alter or
amend these Bylaws or adopt new Bylaws by unanimous written consent or at any
annual, regular, or special meeting by the affirmative vote of a majority of
the whole number of directors, provided that the Board of Directors shall not
make or alter any Bylaws fixing the qualifications, classifications, or term
of office of directors. If stockholders are entitled to vote with respect
thereto to amend or repeal Bylaws adopted by the Board of Directors as may be
provided in the Certificate of Incorporation or by law, then the affirmative
vote of 66-2/3% of the total number of votes of the then outstanding shares
of capital stock of the corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required
for the amendment or repeal of Bylaws by the stockholders of the corporation.
22