AMENDED AND RESTATED
BY-LAWS OF
GENERAL INSTRUMENT CORPORATION
(formerly NextLevel Systems, Inc., hereinafter called the "Corporation")
(As of May 21, 1998)
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
Corporation within the State of Delaware shall be in the City of Wilmington,
County of New Castle.
Section 2. Other Offices. The Corporation may also have an
office or offices other than said registered office at such place or places,
either within or without the State of Delaware, as the Board of Directors
shall from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at any
such time and place, either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of stockholders
shall be held on such date and at such time as shall be designated from time
to time by the Board of Directors and stated in the notice of the meeting or
in a duly executed waiver thereof. At such annual meetings, the stockholders
shall elect by a plurality vote the directors standing for election and
transact such other business as may properly be brought before the meeting in
accordance with these Amended and Restated By-Laws.
Section 3. Special Meetings. Special meetings of
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute may be called
by the Board of Directors, the Chairman of the Board of Directors, if one
shall have been elected, or the President and shall be called by the
Secretary upon the request in writing of a stockholder or stockholders
holding of record at least a majority of the voting power of the issued and
outstanding shares of capital stock of the Corporation entitled to vote at
such meeting.
Section 4. Notice of Meetings. Except as otherwise expressly
required by statute, written notice of each annual and special meeting of
stockholders stating the date, place and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called, shall be given to each stockholder of record entitled to vote thereat
not less than ten nor more than sixty days before the date of the meeting.
Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice. Notice shall be given personally or by
mail and, if by mail, shall be sent in a postage prepaid envelope, addressed
to the stockholder at such stockholder's address as it appears on the records
of the Corporation. Notice by mail shall be deemed given at the time when
the same shall be deposited in the United States mail, postage prepaid.
Notice of any meeting shall not be required to be given to any person who
attends such meeting, except when such person attends the meeting in person
or by proxy for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not
lawfully called or convened, or who, either before or after the meeting,
shall submit a signed written waiver of notice, in person or by proxy.
Neither the business to be transacted at, nor the purpose of, an annual or
special meeting of stockholders need be specified in any written waiver of
notice.
Section 5. Organization. At each meeting of stockholders, the
Chairman of the Board, if one shall have been elected, or, in such person's
absence or if one shall not have been elected, the President, shall act as
chairman of the meeting. The Secretary or, in such person's absence or
inability to act, the person whom the chairman of the meeting shall appoint
secretary of the meeting, shall act as secretary of the meeting and keep the
minutes thereof.
Section 6. Conduct of Business. The chairman of any meeting of
stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seems to him or her in order. The date and time of the opening
and closing of the polls for each matter upon which the stockholders will
vote at a meeting shall be announced at the meeting.
Section 7. Quorum, Adjournments. The holders of a majority
of the voting power of the issued and outstanding shares of capital stock of
the
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Corporation entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum for the transaction of business at all
meetings of stockholders, except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present
or represented by proxy at any meeting of stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall
have the 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 by proxy. At such adjourned meeting at which a quorum shall be
present or represented by proxy, any business may be transacted which might
have been transacted at the meeting as originally called. If the adjournment
is for more than thirty days, or, if after adjournment a new record date is
set, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 8. Voting. Except as otherwise provided by statute or
the Certificate of Incorporation and these Amended and Restated By-Laws, each
stockholder of the Corporation shall be entitled at each meeting of
stockholders to one vote for each share of capital stock of the Corporation
standing in such stockholder's name on the record of stockholders of the
Corporation:
(a) on the date fixed pursuant to the provisions of Section 7 of
Article V of these Amended and Restated By-Laws as the record date
for the determination of the stockholders who shall be entitled to
notice of and to vote at such meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of
business on the date next preceding the day on which the meeting is
held.
Each stockholder entitled to vote at any meeting of stockholders
may authorize another person or persons to act for such stockholder by a
proxy signed by such stockholder or such stockholder's attorney-in-fact, but
no proxy shall be voted after three years from its date, unless the proxy
provides for a longer period. Any such proxy shall be delivered to the
secretary of the meeting at or prior to the time designated in the order of
business for so delivering such proxies. When a quorum is present at any
meeting, the affirmative vote of the holders of a majority of the voting
power of the issued and outstanding stock of the Corporation entitled to vote
thereon, present in person or represented by proxy, shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of statute or of the Certificate of Incorporation or of these
Amended and Restated By-Laws, a different vote is required, in which case
such
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express provision shall govern and control the decision of such question.
Unless required by statute, or determined by the chairman of the meeting to
be advisable, the vote on any question need not be by ballot. On a vote by
ballot, each ballot shall be signed by the stockholder voting, or by such
stockholder's proxy, if there be such proxy.
Section 9. List of Stockholders Entitled to Vote. At least ten
days before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the
name of each stockholder shall be prepared. 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, town, or village 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 of the Corporation who is present.
Section 10. Inspectors. The Board of Directors shall, in
advance of any meeting of stockholders, appoint one or more inspectors to act
at such meeting or any adjournment thereof. If any of the inspectors so
appointed shall fail to appear or act, the chairman of the meeting shall, or
if inspectors shall not have been appointed, the chairman of the meeting may
appoint one or more inspectors. Each inspector, before entering upon the
discharge of such inspector's duties, shall take and sign an oath faithfully
to execute the duties of inspector at such meeting with strict impartiality
and according to the best of such inspector's ability. The inspectors shall
determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count
and tabulate all votes, ballots or consents, determine the results, and do
such acts as are proper to conduct the election or vote with fairness to all
stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request or matter determined
by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as an inspector of
an election of directors. Inspectors need not be stockholders.
Section 11. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided by statute or in the Certificate of Incorporation, any action
required to be taken or which may be taken at any annual or special meeting
of the
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stockholders of the Corporation may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action
so taken, shall be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of any such corporate action
without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
Section 12. Advance Notice Provisions for Election of Directors.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors of the Corporation. Nominations of
persons for election to the Board of Directors may be made at any annual
meeting of stockholders, or at any special meeting of stockholders called for
the purpose of electing directors, (a) by or at the direction of the Board of
Directors (or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder of record on the date
of the giving of the notice provided for in this Section 12 and on the record
date for the determination of stockholders entitled to vote at such meeting
and (ii) who complies with the notice procedures set forth in this Section 12.
In addition to any other applicable requirements, for a nomination
to be made by a stockholder such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (a) in the case of an annual meeting, not less than 60 days nor
more than 90 days prior to the date of the annual meeting; provided, however,
that in the event that less than 70 days' notice or prior public disclosure
of the date of the annual meeting is given or made to stockholders, notice by
the stockholder in order 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 of the
date of the annual meeting was made, whichever first occurs; and (b) in the
case of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the 10th day following the
day on which notice of the date of the special meeting was mailed or public
disclosure of the date of the special meeting was made, whichever first
occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes
to nominate for
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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 or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and
(iv) any other information relating to the person that would be required to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant
to Section 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder; and
(b) as to the stockholder giving the notice (i) the name and record address
of such stockholder, (ii) the class or series and number of shares of capital
stock of the Corporation which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (iv) a representation that such stockholder intends
to appear in person or by proxy at the meeting to nominate the persons named
in its notice and (v) any other information relating to such stockholder that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to be named as a nominee and to
serve as a director if elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in
this Section 12. If the Chairman of the meeting determines that a nomination
was not made in accordance with the foregoing procedures, the Chairman shall
declare to the meeting that the nomination was defective and such defective
nomination shall be disregarded.
Section 13. Advance Notice Provisions for Business to be
Transacted at Annual Meeting. No business may be transacted at an annual
meeting of stockholders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (c) otherwise properly brought before the annual meeting by any stockholder
of the Corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 13 and on the record date for the
determination of stockholders entitled to vote at such annual meeting and
(ii) who complies with the notice procedures set forth in this Section 13.
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In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to
the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary 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 date of
the annual meeting; provided, however, that in the event that less than 70
days' notice or prior public disclosure of the date of the annual meeting is
given or made to stockholders, notice by the stockholder in order 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 of the date of the annual meeting was
made, whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such 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 such
stockholder, (iii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record by such
stockholder, (iv) a description of all arrangements or understandings between
such stockholder and any other person or persons (including their names) in
connection with the proposal of such business by such stockholder and any
material interest of such stockholder in such business and (v) a
representation that such stockholder intends to appear in person or by proxy
at the annual meeting to bring such business before the meeting.
No business shall be conducted at the annual meeting of
stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this Section 13, provided, however, that,
once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this Section 13 shall be deemed
to preclude discussion by any stockholder of any such business. If the
Chairman of an annual meeting determines that business was not properly
brought before the annual meeting in accordance with the foregoing
procedures, the Chairman shall declare to the meeting that the business was
not properly brought before the meeting and such business shall not be
transacted.
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ARTICLE III
DIRECTORS
Section 1. Place of Meetings. Meetings of the Board of
Directors shall be held at such place or places, within or without the State of
Delaware, as the Board of Directors may from time to time determine or as
shall be specified in the notice of any such meeting.
Section 2. Annual Meeting. The annual meeting of the Board of
Directors may be held at such time or place (within or without the State of
Delaware) as shall be specified in a notice thereof given as hereinafter
provided in Section 5 of this Article III.
Section 3. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such time and place as the Board of Directors may
fix. If any day fixed for a regular meeting shall be a legal holiday at the
place where the meeting is to be held, then the meeting which would otherwise
be held on that day shall be held at the same hour on the next succeeding
business day.
Section 4. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if one shall have been
elected, or by two or more directors of the Corporation or by the President.
Section 5. Notice of Meetings. Notice of regular meetings of
the Board of Directors need not be given except as otherwise required by law
or these Amended and Restated By-Laws. Notice of each special meeting of the
Board of Directors for which notice shall be required, shall be given by the
Secretary as hereinafter provided in this Section 5, in which notice shall be
stated the time and place of the meeting. Except as otherwise required by
these Amended and Restated By-Laws, such notice need not state the purposes
of such meeting. Notice of any special meeting, and of any regular or annual
meeting for which notice is required, shall be given to each director at
least (a) four hours before the meeting if by telephone or by being
personally delivered or sent by telex, telecopy, or similar means or (b) two
days before the meeting if delivered by mail to the director's residence or
usual place of business. Such notice shall be deemed to be delivered when
deposited in the United States mail so addressed, with postage prepaid, or
when transmitted if sent by telex, telecopy, or similar means. Neither the
business to be transacted at, nor the purpose of, any special meeting of the
Board of Directors need be specified in the notice or waiver of notice of
such meeting. Any director may waive notice of any meeting by a writing
signed by the director entitled to the notice and filed with the minutes or
corporate records. The
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attendance at or participation of the director at a meeting shall constitute
waiver of notice of such meeting, unless the director at the beginning of the
meeting or promptly upon such director's arrival objects to holding the
meeting or transacting business at the meeting.
Section 6. Organization. At each meeting of the Board of
Directors, the Chairman of the Board, if one shall have been elected, or, in the
absence of the Chairman of the Board or if one shall not have been elected, the
President (or, in the President's absence, another director chosen by a
majority of the directors present) shall act as chairman of the meeting and
preside thereat. The Secretary or, in such person's absence, any person
appointed by the chairman shall act as secretary of the meeting and keep the
minutes thereof.
Section 7. Quorum and Manner of Acting. A majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, and, except as otherwise
expressly required by statute or the Certificate of Incorporation or these
Amended and Restated By-Laws, the affirmative vote of a majority of the
directors present at any meeting at which a quorum is present shall be the
act of the Board of Directors. In the absence of a quorum at any meeting of
the Board of Directors, a majority of the directors present thereat may
adjourn such meeting to another time and place. Notice of the time and place
of any such adjourned meeting shall be given to all of the directors unless
such time and place were announced at the meeting at which the adjournment
was taken, in which case such notice need only be given to the directors who
were not present thereat. At any adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at
the meeting as originally called. The directors shall act only as a Board
and the individual directors shall have no power as such.
Section 8. Action by Consent. Unless restricted by the
Certificate of Incorporation, any action required or permitted to be taken by
the Board of Directors or any committee thereof may be taken without a
meeting if all members of the Board of Directors or such committee, as the
case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board of Directors or such
committee, as the case may be.
Section 9. Telephonic Meeting. Unless restricted by the
Certificate of Incorporation, any one or more members of the Board of
Directors or any committee thereof may participate in a meeting of the Board
of Directors or such committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear
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each other. Participation by such means shall constitute presence in person
at a meeting.
Section 10. Committees. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors, designate
one or more committees, including an executive committee, each committee to
consist of one or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence of disqualification of any member of a
committee, the member or members present at any meeting and not disqualified
from voting, whether or not such members 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.
Each such committee, to the extent provided in the resolution
creating it, shall have and may exercise all the powers and authority of the
Board of Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all papers which require it; provided, however, that no such committee shall
have the power or authority in reference to the following matters: (a)
approving or adopting, or recommending to the stockholders, any action or
matter expressly required by the General Corporation Law of Delaware to be
submitted to stockholders for approval or (b) adopting, amending or repealing
any by-law of the Corporation. Each such committee shall serve at the
pleasure of the Board of Directors and have such name as may be determined
from time to time by resolution adopted by the Board of Directors. Each
committee shall keep regular minutes of its meetings and report the same to
the Board of Directors.
Section 11. 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 the Board of
Directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 12. Resignations. Any director of the Corporation may
resign at any time by giving written notice of such director's resignation to
the Corporation. Any such resignation shall take effect at the time
specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
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Section 13. Interested Directors. No contract or transaction
between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association,
or other organization in which one or more of its directors or officers are
directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is
present at or participates in the meeting of the Board of Directors or
committee thereof which authorizes the contract or transaction, or solely
because such person's or persons' votes are counted for such purposes if (a)
the material facts as to such person's or persons' relationship or interest
and as to the contract or transaction are disclosed or are known to the
directors or committee who then in good faith authorizes the contract or
transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum, (b)
the material facts as to such person's or persons' relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders or (c) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee
thereof or the stockholders. Interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors
or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the Corporation shall be
chosen by the Board of Directors and shall include a President, one or more Vice
Presidents (including Senior, Executive or other classifications of Vice
Presidents) and a Secretary. The Board of Directors, in its discretion, may
also choose as an officer of the Corporation a Chairman of the Board and a
Vice Chairman of the Board and may choose other officers (including a
Treasurer, one or more Assistant Secretaries and one or more Assistant
Treasurers) as may be necessary or desirable. Such officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any officer of the Corporation the power to choose
such other officers and to proscribe their respective duties and powers. Any
number of offices may be held by the same person, unless otherwise prohibited
by law, the Certificate of Incorporation or these Amended and Restated
By-Laws. The officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the
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Board and Vice Chairman of the Board of Directors, need such officers be
directors of the Corporation.
Section 2. Term. All officers of the Corporation shall hold
office until their successors are chosen and qualified, or until their earlier
resignation or removal. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors.
Section 3. Resignations. Any officer of the Corporation may
resign at any time by giving written notice of such officer's resignation to the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon receipt. Unless otherwise specified therein, the
acceptance of any such resignation shall not be necessary to make it
effective.
Section 4. Removal. Any officer may be removed at any time by
the Board of Directors with or without cause.
Section 5. Compensation. The compensation of the officers of
the Corporation for their services as such officers shall be fixed from time
to time by the Board of Directors. An officer of the Corporation shall not
be prevented from receiving compensation by reason of the fact that such
officer is also a director of the Corporation.
Section 6. Chairman of the Board. The Chairman of the Board,
if one shall have been elected, shall be a member of the Board, an officer of
the Corporation and, if present, shall preside at each meeting of the Board
of Directors or the stockholders. The Chairman of the Board shall advise and
counsel with the President, and in the President's absence with other
executives of the Corporation, and shall perform such other duties as may
from time to time be assigned to the Chairman of the Board by the Board of
Directors.
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
Section 1. Stock Certificates. 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 or a Vice Chairman of
the Board or the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary of the
Corporation, certifying the number of shares owned by such holder in the
Corporation. If the Corporation shall be
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authorized to issue more than one class of stock or more than one series of
any class, the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restriction 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 General Corporation Law of Delaware, 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 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 2. Facsimile Signatures. Any or all of the
signatures on a 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 a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person was
such officer, transfer agent or registrar at the date of issue.
Section 3. Lost Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen, or destroyed. 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 the owner's
legal representative, to give the Corporation a bond in such sum as it may
direct sufficient to indemnify it against any claim that may be made against
the Corporation on account of the alleged loss, theft or destruction of any
such certificate or the issuance of such new certificate.
Section 4. Transfers of Stock. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer, it shall be the duty of the Corporation
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its records; provided, however,
that the Corporation shall be entitled to recognize and enforce any lawful
restriction on transfer. Whenever any transfer of stock shall be made for
collateral security, and not absolutely, it shall be so expressed in the
entry
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of transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and the transferee request the Corporation to
do so.
Section 5. Transfer Agents and Registrars. The Board of
Directors may appoint, or authorize any officer or officers to appoint, one
or more transfer agents and one or more registrars.
Section 6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with these Amended and
Restated By-Laws, as it may deem expedient concerning the issue, transfer and
registration of certificates for shares of stock of the Corporation.
Section 7. Fixing the Record Date. In order that the
Corporation may determine the stockholders entitled to notice of or to vote
at any meeting of stockholders or any adjournment thereof, or to express
consent to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or 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, in advance, a record date, which
shall not be more than sixty nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. 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.
Section 8. Registered Stockholders. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its
records as the owner of shares of stock 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 of stock on the part of any other
person, whether or not it shall have express or other notice thereof, except
as otherwise provided by law.
ARTICLE VI
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. General. Each person who was or is made a party or is
threatened to be made a party to or is involved (including, without
limitation, as a witness) in any threatened, pending or completed action,
suit, arbitration, alternative dispute resolution mechanism, investigation,
administrative hearing or any other proceeding, whether civil, criminal,
administrative or investigative ("Proceeding") brought by reason of the fact
that such person (the "Indemnitee") is
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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 or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan, whether the basis of such
Proceeding is alleged action in an official capacity as a director or officer
or in any other capacity while serving as such a director or officer, shall
be indemnified and held harmless by the Corporation to the full extent
authorized by the General Corporation Law of Delaware, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment), or by other applicable law as then in effect,
against all expenses, liabilities, losses and claims (including attorneys'
fees, judgments, fines, excise taxes under the Employee Retirement Income
Security Act of 1974, as amended from time to time, penalties and amounts to
be paid in settlement) actually incurred or suffered by such Indemnitee in
connection with such Proceeding (collectively, "Losses").
Section 2. Derivative Actions. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to or is
involved (including, without limitation, as a witness) in any Proceeding
brought by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person (also an "Indemnitee") 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 or of a
partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan, against Losses actually incurred or
suffered by the Indemnitee in connection with the defense or settlement of
such action or suit if the Indemnitee acted in good faith and in a manner the
Indemnitee reasonably believed to be in or not opposed to the best interests
of the Corporation, provided that no indemnification shall be made in respect
of any claim, issue or matter as to which Delaware law expressly prohibits
such indemnification by reason of an adjudication of liability of the
Indemnitee unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, the Indemnitee is fairly and
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. Indemnification in Certain Cases. Notwithstanding
any other provision of this Article VI, to the extent that an Indemnitee has
been wholly successful on the merits or otherwise in any Proceeding referred
to in Sections 1 or 2 of this Article VI on any claim, issue or matter
therein, the
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Indemnitee shall be indemnified against Losses actually incurred or suffered
by the Indemnitee in connection therewith. If the Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or otherwise,
as to one or more but less than all claims, issues or matters in such
Proceeding, the Corporation shall indemnify the Indemnitee, against Losses
actually incurred or suffered by the Indemnitee in connection with each
successfully resolved claim, issue or matter. In any review or Proceeding to
determine such extent of indemnification, the Corporation shall bear the
burden of proving any lack of success and which amounts sought in indemnity
are allocable to claims, issues or matters which were not successfully
resolved. For purposes of this Section 3 and without limitation, the
termination of any such claim, issue or matter by dismissal with or without
prejudice shall be deemed to be a successful resolution as to such claim,
issue or matter.
Section 4. Procedure. (a) Any indemnification under Sections 1
and 2 of this Article VI (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 Indemnitee is proper (except that the right of the
Indemnitee to receive payments pursuant to Section 5 of this Article VI shall
not be subject to this Section 4) in the circumstances because the Indemnitee
has met the applicable standard of conduct. Such determination shall be made
promptly, but in no event later than 60 days after receipt by the Corporation
of the Indemnitee's written request for indemnification. The Secretary of the
Corporation shall, promptly upon receipt of the Indemnitee's request for
indemnification, advise the Board of Directors that the Indemnitee has made
such request for indemnification.
(b) The entitlement of the Indemnitee to indemnification shall be
determined in the specific case (1) by the Board of Directors by a majority
vote of the directors who are not parties to such Proceeding, even though
less than a quorum (the "Disinterested Directors"), or (2) if there are no
Disinterested Directors, or if such Disinterested Directors so direct, by
independent legal counsel, or (3) by the stockholders.
(c) In the event the determination of entitlement is to be made by
independent legal counsel, such independent legal counsel shall be selected
by the Board of Directors and approved by the Indemnitee. Upon failure of
the Board of Directors to so select such independent legal counsel or upon
failure of the Indemnitee to so approve, such independent legal counsel shall
be selected by the American Arbitration Association in New York, New York or
such other person as such Association shall designate to make such selection.
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(d) If the Board of Directors or independent legal counsel shall
have determined that the Indemnitee is not entitled to indemnification to the
full extent of the Indemnitee's request, the Indemnitee shall have the right
to seek entitlement to indemnification in accordance with the procedures set
forth in Section 6 of this Article VI.
(e) If the person or persons empowered pursuant to Section 4(b) of
this Article VI to make a determination with respect to entitlement to
indemnification shall have failed to make the requested determination within
60 days after receipt by the Corporation of such request, the requisite
determination of entitlement to indemnification shall be deemed to have been
made and the Indemnitee shall be absolutely entitled to such indemnification,
absent (i) misrepresentation by the Indemnitee of a material fact in the
request for indemnification or (ii) a final judicial determination that all
or any part of such indemnification is expressly prohibited by law.
(f) The termination of any proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, adversely affect the rights of the
Indemnitee to indemnification hereunder except as may be specifically
provided herein, or create a presumption that the Indemnitee did not act in
good faith and in a manner which the Indemnitee reasonably believed to be in
or not opposed to the best interests of the Corporation or create a
presumption that (with respect to any criminal action or proceeding) the
Indemnitee had reasonable cause to believe that the Indemnitee's conduct was
unlawful.
(g) For purposes of any determination of good faith hereunder, the
Indemnitee shall be deemed to have acted in good faith if the Indemnitee's
action is based on the records or books of account of the Corporation or an
affiliate, including financial statements, or on information supplied to the
Indemnitee by the officers of the Corporation or an affiliate in the course
of their duties, or on the advice of legal counsel for the Corporation or an
affiliate or on information or records given or reports made to the
Corporation or an affiliate by an independent certified public accountant or
by an appraiser or other expert selected with reasonable care to the
Corporation or an affiliate. The Corporation shall have the burden of
establishing the absence of good faith. The provisions of this Section 4(g)
of this Article VI shall not be deemed to be exclusive or to limit in any way
the other circumstances in which the Indemnitee may be deemed to have met the
applicable standard of conduct set forth in these Amended and Restated
By-Laws.
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(h) The knowledge and/or actions, or failure to act, of any other
director, officer, agent or employee of the Corporation or an affiliate shall
not be imputed to the Indemnitee for purposes of determining the right to
indemnification under these Amended and Restated By-Laws.
Section 5. Advances for Expenses and Costs. All expenses
(including attorneys' fees) incurred by or on behalf of the Indemnitee (or
reasonably expected by the Indemnitee to be incurred by the Indemnitee within
three months) in connection with any Proceeding shall be paid by the
Corporation in advance of the final disposition of such Proceeding within
twenty days after the receipt by the Corporation of a statement or statements
from the Indemnitee requesting from time to time such advance or advances
whether or not a determination to indemnify has been made under Section 4 of
this Article VI. The Indemnitee's entitlement to such advancement of
expenses shall include those incurred in connection with any Proceeding by
the Indemnitee seeking an adjudication or award in arbitration pursuant to
these Amended and Restated By-Laws. The financial ability of an Indemnitee
to repay an advance shall not be a prerequisite to the making of such
advance. Such statement or statements shall reasonably evidence such
expenses incurred (or reasonably expected to be incurred) by the Indemnitee
in connection therewith and shall include or be accompanied by a written
undertaking by or on behalf of the Indemnitee to repay such amount if it
shall ultimately be determined that the Indemnitee is not entitled to be
indemnified therefor pursuant to the terms of this Article VI.
Section 6. Remedies in Cases of Determination Not to Indemnify
or to Advance Expenses. (a) In the event that (i) a determination is made
that the Indemnitee is not entitled to indemnification hereunder, (ii) advances
are not made pursuant to Section 5 of this Article VI or (iii) payment has
not been timely made following a determination of entitlement to
indemnification pursuant to Section 4 of this Article VI, the Indemnitee
shall be entitled to seek a final adjudication either through an arbitration
proceeding or in an appropriate court of the State of Delaware or any other
court of competent jurisdiction of the Indemnitee's entitlement to such
indemnification or advance.
(b) In the event a determination has been made in accordance with
the procedures set forth in Section 4 of this Article VI, in whole or in
part, that the Indemnitee is not entitled to indemnification, any judicial
proceeding or arbitration referred to in paragraph (a) of this Section 6
shall be de novo and the Indemnitee shall not be prejudiced by reason of any
such prior determination that the Indemnitee is not entitled to
indemnification, and the Corporation shall bear the burdens of proof
specified in Sections 3 and 4 of this Article VI in such proceeding.
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(c) If a determination is made or deemed to have been made
pursuant to the terms of Sections 4 or 6 of this Article VI that the
Indemnitee is entitled to indemnification, the Corporation shall be bound by
such determination in any judicial proceeding or arbitration in the absence
of (i) a misrepresentation of a material fact by the Indemnitee or (ii) a
final judicial determination that all or any part of such indemnification is
expressly prohibited by law.
(d) To the extent deemed appropriate by the court, interest shall
be paid by the Corporation to the Indemnitee at a reasonable interest rate
for amounts which the Corporation indemnifies or is obliged to indemnify the
Indemnitee for the period commencing with the date on which the Indemnitee
requested indemnification (or reimbursement or advancement of expenses) and
ending with the date on which such payment is made to the Indemnitee by the
Corporation.
Section 7. Rights Non-Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, the other
Sections of this Article VI shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any law, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
Section 8. Insurance. The Corporation shall have power to
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, including service with respect to an employee benefit plan,
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 to indemnify such person
against such liability under the provisions of this Article VI.
Section 9. Definition of Corporation. For purposes of this
Article VI, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
19
including service with respect to an employee benefit plan, shall stand in
the same position under this Article VI 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.
Section 10. Other Definitions. For purposes of this Article VI,
references to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner such person reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to in this Article VI.
Section 11. Survival of Rights. The indemnification and
advancement of expenses provided by, or granted pursuant to this Article VI
shall, unless otherwise provided when authorized or ratified, continue as to
a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such
a person. No amendment, alteration, rescission or replacement of these
Amended and Restated By-Laws or any provision hereof shall be effective as to
an Indemnitee with respect to any action taken or omitted by such Indemnitee
in Indemnitee's position with the Corporation or any other entity which the
Indemnitee is or was serving at the request of the Corporation prior to such
amendment, alteration, rescission or replacement.
Section 12. Indemnification of Employees and Agents of the
Corporation. The Corporation may, by action of the Board of Directors from
time to time, grant rights to indemnification and advancement of expenses to
employees and agents of the Corporation with the same scope and effect as the
provisions of this Article VI with respect to the indemnification of
directors and officers of the Corporation.
Section 13. Savings Clause . If this Article VI or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each person
entitled to indemnification under the first paragraph of this Article VI as
to all losses actually and reasonably incurred or suffered by such person and
for which indemnification is available to such person pursuant to this
Article VI to the full extent permitted
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by any applicable portion of this Article VI that shall not have been
invalidated and to the full extent permitted by applicable law.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the provisions of statute and
the Certificate of Incorporation, dividends upon the shares of capital stock
of the Corporation may be declared by the Board of Directors at any regular
or special meeting. Dividends may be paid in cash, in property or in shares
of stock of the Corporation, unless otherwise provided by statute or the
Certificate of Incorporation.
Section 2. Reserves. 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 Board of Directors may, from time to time, in its 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 Board of Directors may think
conducive to the interests of the Corporation. The Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
Section 3. Seal. The seal of the Corporation shall be in such
form as shall be approved by the Board of Directors.
Section 4. Fiscal Year. The fiscal year of the Corporation
shall be fixed, and once fixed, may thereafter be changed, by resolution of
the Board of Directors.
Section 5. Checks, Notes, Drafts, Etc. All checks, notes,
drafts or other orders for the payment of money of the Corporation shall be
signed, endorsed or accepted in the name of the Corporation by such officer,
officers, person or persons as from time to time may be designated by the
Board of Directors or by an officer or officers authorized by the Board of
Directors to make such designation.
Section 6. Execution of Contracts, Deeds, Etc. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Corporation to enter into or execute and deliver any and
all deeds, bonds, mortgages, contracts and other obligations or instruments,
and such authority may be general or confined to specific instances.
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Section 7. Voting of Stock in Other Corporations. Unless
otherwise provided by resolution of the Board of Directors, the Chairman of
the Board or the President, from time to time, may (or may appoint one or
more attorneys or agents to) cast the votes which the Corporation may be
entitled to cast as a shareholder or otherwise in any other corporation, any
of whose shares or securities may be held by the Corporation, at meetings of
the holders of the shares or other securities of such other corporation. In
the event one or more attorneys or agents are appointed, the Chairman of the
Board or the President may instruct the person or persons so appointed as to
the manner of casting such votes or giving such consent. The Chairman of the
Board or the President may, or may instruct the attorneys or agents appointed
to, execute or cause to be executed in the name and on behalf of the
Corporation and under its seal or otherwise, such written proxies, consents,
waivers or other instruments as may be necessary or proper in the
circumstances.
ARTICLE VIII
AMENDMENTS
These Amended and Restated By-Laws may be repealed, altered,
amended or rescinded in whole or in part, or new By-Laws may be adopted by
either the affirmative vote of the holders of at least a majority of the
voting power of all of the issued and outstanding shares of capital stock of
the Corporation entitled to vote thereon or by the Board of Directors.
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