EXHIBIT 3.2
BY-LAWS
OF
ZIPLINK, INC.
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of ZipLink, Inc. (the
"Corporation") shall be in the City of Wilmington, State of Delaware.
SECTION 1.2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.1. PLACE OF MEETING. All meetings of the stockholders for the
election of directors shall be held at such 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. Meetings of stockholders for
any other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated by the Board of Directors in its notice of
the meeting or in a duly executed waiver of notice thereof.
SECTION 2.2. TIME OF ANNUAL MEETING. Annual meetings of stockholders at
which stockholders shall elect directors as provided in the Corporation's
Certificate of Incorporation and Section 2.4 of Article II of these By-laws and
transact such other business as may properly be brought before the meeting in
accordance with Section 2.4 of Article II of these By-laws shall be held on such
business day within the 180-day period following the end of the Corporation's
fiscal year as shall be designated from time to time by the Board of Directors
and stated in the notice of the meeting.
SECTION 2.3. NOTICE OF ANNUAL MEETINGS. Except as otherwise required by
law, written notice of the annual meeting stating the place, date and hour of
the meeting shall be given to each stockholder entitled to vote at such meeting
not fewer than 10 nor more than 60 days before the date of the meeting.
SECTION 2.4 PROPOSALS BY STOCKHOLDERS. Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be transacted by the stockholders may be made at an annual meeting
of stockholders (i) pursuant to the Corporation's notice with respect to such
meeting, (ii) by or at the direction of the Board of Directors of the
Corporation or (iii) by any stockholder of record of the Corporation who was a
stockholder of record at the time of the giving of the notice provided for in
the following paragraph, who is entitled to vote at the meeting and who has
complied with the notice procedures set forth in this Article II, Section 2.4.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of the foregoing paragraph,
(a) the stockholder must have given timely notice thereof in writing to the
secretary of the Corporation at the principal executive offices of the
Corporation, (b) such business must be a proper matter for stockholder action
under the General Corporation Law of the State of Delaware, (c) if the
stockholder, or the beneficial owner on whose behalf any such proposal or
nomination is made, has provided the Corporation with a Solicitation Notice, as
that term is defined in this Article II, Section 2.4, such stockholder or
beneficial owner must, in the case of a proposal, have delivered a proxy
statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial holder to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder (the number of voting shares required to carry the proposal or elect
the nominees being the "Required Number"), and must, in either case, have
included in such materials the Solicitation Notice and (d) if no Solicitation
Notice relating thereto has been timely provided pursuant to this section, the
stockholder or beneficial owner proposing such business or nomination must not
have solicited proxies for a number of shares equal to or greater than the
Required Number. To be timely, a stockholder's notice shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not less than 45 nor more than 75 days prior to the first
anniversary (the "Anniversary") of the date on which the Corporation first
mailed its proxy materials for the preceding year's annual meeting of
stockholders; provided, however, that if the date of the annual meeting is
advanced more than 30 days prior to, or delayed by more than 30 days after, the
anniversary of the preceding year's annual meeting, or if it is the first annual
meeting of stockholders of the Corporation, notice by the stockholder to be
timely must be so delivered not later than the close of business on the later of
(i) the 90th day prior to such annual meeting or (ii) the 10th day following the
day on which public announcement of the date of such meeting is first made. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, all information
relating to such person as would be required to be disclosed in solicitations of
proxies for the election of such nominees as directors pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and such person's written consent to serve as a director if elected, (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of such business, the reasons for conducting such business at
the meeting
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and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made, and (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (ii) the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner, and
(iii) whether either such stockholder or beneficial owner intends to deliver a
proxy statement and form of proxy to holders of, in the case of a proposal, at
least the percentage of the Corporation's voting shares required under
applicable law to carry the proposal or, in the case of a nomination or
nominations, a sufficient number of holders of the Corporation's voting shares
to elect such nominee or nominees (an affirmative statement of such intent being
a "Solicitation Notice").
Notwithstanding anything in the second sentence of the second paragraph of
this Section 2.4 to the contrary, in the event that the number of directors to
be elected to the Board of Directors is increased and there is no public
announcement naming all of the nominees for director or specifying the size of
the increased Board of Directors made by the Corporation at least 55 days prior
to the Anniversary, a stockholder's notice required by these By-laws shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation not later than
the close of business on the 10th day following the day on which such public
announcement is first made by the Corporation.
Only persons nominated in accordance with the procedures set forth in this
Section 2.4 shall be eligible to serve as directors, and only such business
shall be conducted at an annual meeting of stockholders, as shall have been
brought before the meeting in accordance with the procedures set forth in this
section. The chair of the meeting shall have the power and the duty to determine
whether a nomination or any business proposed to be brought before the meeting
has been made in accordance with the procedures set forth in these By-laws and,
if any proposed nomination or business is not in compliance with these By-laws,
to declare that such defective proposed business or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded.
Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporation's
notice of meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be
elected pursuant to the Corporation's notice of meeting (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of record of the
Corporation who is a stockholder of record at the time of the giving of notice
provided for in this paragraph, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 2.4.
Nominations by stockholders of persons for election to the Board of Directors
may be made at such a special meeting of stockholders if the stockholder's
notice required by the second paragraph of this Section 2.4 shall be delivered
to the Secretary of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the later of the 90th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the
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date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
For purposes of this section, "public announcement" shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or a
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 2.4, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to matters set forth in this
Section 2.4. Nothing in this Section 2.4 shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 2.5. SPECIAL MEETINGS OF THE STOCKHOLDERS. Special meetings of the
stockholders of the Corporation may be called only by the Board of Directors
pursuant to a resolution approved by a majority of the Board of Directors. The
business transacted at any special meeting of the stockholders shall be limited
to the purposes stated in the notice for the meeting transmitted to
stockholders.
SECTION 2.6. NOTICE OF SPECIAL MEETINGS. Written notice of a special
meeting stating the place, date and hour of the meeting and the purpose or
purposes for which the meeting is called, shall be given by the Secretary of the
Corporation, not fewer than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote at such meeting.
SECTION 2.7. FIXING OF 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 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 a
record date, which shall not precede the date upon which the resolution fixing
the record date is adopted, and which shall be (i) not more than 60 nor less
than 10 days before the date of a meeting, and (ii) not more than 60 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 any adjourned meeting.
SECTION 2.8. VOTING LISTS. The officer who has charge of the stock ledger
of the Corporation shall prepare and make available, at least 10 days before
every 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. 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 10 days prior to the meeting, either at a place within the city
where the meeting is to be held, which place shall be specified in the notice of
the meeting, or, if not so
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specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
SECTION 2.9. QUORUM AND ADJOURNMENTS. The holders of a majority of the
voting power of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business, except as
otherwise provided by statute or by the Corporation's Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any such meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented; provided, that if the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed by the directors for the adjourned meeting, a new notice shall be
transmitted to the stockholders of record entitled to vote at the adjourned
meeting. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified.
SECTION 2.10. VOTE REQUIRED. When a quorum is present at any meeting of all
stockholders, the affirmative vote of the holders of a majority of the voting
power of the stock issued and outstanding and entitled to vote thereat, 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 Corporation's Certificate of Incorporation, a different vote is
required, in which case such express provision shall govern and control the
decision of such question; provided, however, that all elections of directors
shall be determined by a plurality of the votes cast.
SECTION 2.11. VOTING RIGHTS. Unless otherwise provided in the Corporation's
Certificate of Incorporation, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of the
capital stock having voting power held by such stockholder, but no proxy shall
be voted on after three years from its date, unless the proxy provides for a
longer period. At any meeting of the stockholders, every stockholder entitled to
vote may vote in person or by proxy authorized by an instrument in writing or by
a transmission permitted by law filed in accordance with the procedure
established for the meeting. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission created pursuant to this
paragraph 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. All voting, including on the election
of directors, may (except where otherwise required by law) be by a voice vote;
provided, however, that upon demand therefor by a stockholder entitled to vote
or by his or her proxy, a stock vote shall be taken. Every stock vote shall be
taken by ballots, each of which shall state the name of the stockholder or proxy
voting and such other information as may be required under the procedure
established
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for the meeting. The Corporation may, and to the extent required by law 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 may, and to the extent
required by law shall, appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath to faithfully execute the duties of inspector with strict
impartiality and according to the best of his or her ability. Every vote taken
by ballots shall be counted by an inspector or inspectors appointed by the
chairman of the meeting.
SECTION 2.12. PRESIDING OVER MEETINGS. The Chairman of the Board of
Directors shall preside at all meetings of the stockholders. In the absence or
inability to act of the Chairman, the Vice Chairman or the President (in that
order) shall preside, and in their absence or inability to act another person
designated by one of them shall preside. The Secretary of the Corporation shall
act as Secretary of each meeting of the stockholders. In the event of his or her
absence or inability to act, the chairman of the meeting shall appoint a person
who need not be a stockholder to act as Secretary of the meeting.
SECTION 2.13. CONDUCTING MEETINGS. Meetings of the stockholders shall be
conducted in a fair manner but need not be governed by any prescribed rules of
order. The presiding officer of the meeting shall establish an agenda for the
meeting. The presiding officer's rulings on procedural matters shall be final.
The presiding officer is authorized to impose reasonable time limits on the
remarks of individual stockholders and may take such steps as such officer may
deem necessary or appropriate to assure that the business of the meeting is
conducted in a fair and orderly manner.
ARTICLE III
DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of the Corporation
shall be under the direction of and managed by a Board of Directors, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not required by statute, by the Corporation's Certificate of
Incorporation or by these By-laws to be done by the stockholders. Directors need
not be residents of the State of Delaware or stockholders of the Corporation.
The number of directors shall be determined from time to time by resolution
adopted by the affirmative vote of a majority of the directors in office at the
time of adoption of such resolution.
SECTION 3.2. ELECTION. Directors shall be elected for a term of one year or
other term as specified in the Corporation's Certificate of Incorporation, and
each director elected shall hold office during the term for which he or she is
elected and until his or her successor is
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elected and qualified, subject, however, to his or her prior death, resignation,
retirement or removal from office.
SECTION 3.3. VACANCIES. Any vacancies occurring in the Board of Directors
and newly created directorships shall be filled in the manner provided in the
Corporation's Certificate of Incorporation.
SECTION 3.4. PLACE OF MEETINGS. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware. The first meeting of each newly elected Board of Directors shall be
held immediately following the adjournment of the annual meeting of the
stockholders at the same place as such annual meeting and no notice of such
meeting shall be necessary to the newly elected directors in order to legally
constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held at such time and place, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
SECTION 3.5 PARTICIPATION BY CONFERENCE TELEPHONE. Unless otherwise
restricted by the Corporation's Certificate of Incorporation or these By-laws,
members of the Board of Directors, or any committee designated by the Board of
Directors, may participate in a meeting of the Board of Directors, or any such
committee, by means of conference telephone or similar communications equipment
through which all persons participating in the meeting can hear each other, and
participation by such means shall constitute presence in person at such meeting.
SECTION 3.6. REGULAR MEETINGS. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board of Directors.
SECTION 3.7. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman or Vice Chairman of the Board on at least one
day's notice to each director, either personally or by courier, telephone,
telefax, mail or telegram. Special meetings shall be called by the Chairman or
Vice Chairman of the Board in like manner and on like notice at the written
request of two or more of the directors comprising the Board of Directors,
stating the purpose or purposes for which such meeting is requested. Notice of
any meeting of the Board of Directors for which a notice is required may be
waived in writing signed by the person or persons entitled to such notice,
whether before or after the time of such meeting, and such waiver shall be
equivalent to the giving of such notice. Attendance of a director at any such
meeting shall constitute a waiver of notice thereof, except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because such meeting is not lawfully convened. Neither the business to
be transacted at nor the purpose of any meeting of the Board of Directors for
which a notice is required need be specified in the notice, or waiver of notice,
of such meeting. The Chairman of the Board shall preside at all meetings of the
Board of Directors. In the absence or inability to act of the Chairman of the
Board, the Vice Chairman of the Board or the President (in that order) shall
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preside, and in their absence or inability to act, another director designated
by one of them shall preside.
SECTION 3.8. QUORUM; NO ACTION ON CERTAIN MATTERS. At all meetings of the
Board of Directors, a majority of the then duly elected directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute or by the Corporation's Certificate of Incorporation. If a quorum shall
not be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 3.9. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the Board of Directors or to the Chairman
or Vice Chairman of the Board. Such resignation shall take effect at the time
specified therein and, unless tendered to take effect upon acceptance thereof,
the acceptance of such resignation shall not be necessary to make it effective.
SECTION 3.10. INFORMAL ACTION. Unless otherwise restricted by the
Corporation's Certificate of Incorporation or these By-laws, any action required
or permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board of
Directors or such committee consent thereto in writing and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
SECTION 3.11. PRESUMPTION OF ASSENT. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his or her dissent shall be entered in the minutes of the meeting
or unless he or she shall file his or her written dissent to such action with
the person acting as the Secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
SECTION 3.12. COMPENSATION OF DIRECTORS. In the discretion of the Board of
Directors, the directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors or a committee thereof, may be paid a
stated salary or a fixed sum for attendance at each meeting of the Board of
Directors or a committee thereof, and may be awarded other compensation for
their services as directors. No such payment or award shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
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ARTICLE IV
COMMITTEES OF DIRECTORS
SECTION 4.1. APPOINTMENT AND POWERS. The Board of Directors may designate
one or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
member or members constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; but no such committee shall have
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 the State of Delaware to be submitted
to stockholders for approval; or (b) adopting, amending or repealing these
By-laws.
SECTION 4.2. COMMITTEE MINUTES. Each committee shall keep regular minutes
of its meetings and shall file such minutes and all written consents executed by
its members with the Secretary of the Corporation. Each committee may determine
the procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings;
one-third of the members shall constitute a quorum unless the committee shall
consist of one or two members, in which event one member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
ARTICLE V
NOTICES
SECTION 5.1. MANNER OF NOTICE. Whenever, under applicable law or the
Corporation's Certificate of Incorporation or these By-laws, notice is required
to be given to any director or stockholder, unless otherwise provided in the
Corporation's Certificate of Incorporation or these By-laws, such notice may be
given in writing, by courier or mail, addressed to such director or stockholder,
at such director's or stockholder's address as it appears on the records of the
Corporation, with freight or postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall have been deposited with such
courier or in the United States mail. Notice may be given orally if such notice
is confirmed in writing in a
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manner provided therein. Notice to directors may also be given by telegram,
mailgram, telex or telecopier.
SECTION 5.2. WAIVER. Whenever any notice is required to be given under
applicable law or the provisions of the Corporation's Certificate of
Incorporation or these By-laws, 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.
ARTICLE VI
OFFICERS
SECTION 6.1. NUMBER AND QUALIFICATIONS. The officers of the Corporation
shall be elected by the Board of Directors and shall be a Chairman of the Board,
a Vice Chairman of the Board, a Chief Executive Officer, a President, a Chief
Financial Officer, one or more Vice Presidents and a Secretary. Membership on
the Board of Directors shall not be a prerequisite to the holding of any other
office. Any number of offices may be held by the same person, unless the
Corporation's Certificate of Incorporation or these By-laws otherwise provide.
SECTION 6.2. OTHER OFFICERS AND AGENTS. The Board of Directors may from
time to time choose such other officers and agents as it shall deem necessary,
which officers and agents shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined by the Board
of Directors.
SECTION 6.3. SALARIES. The salaries or other compensation of the officers
and agents of the Corporation shall be fixed from time to time by the Board of
Directors, and no officer shall be prevented from receiving such salary or other
compensation by reason of the fact that such officer is also a director of the
Corporation.
SECTION 6.4. TERM OF OFFICE. The officers of the Corporation shall hold
office until their successors are chosen and qualified or until their earlier
resignation or removal. Any officer elected or appointed by the Board of
Directors may be removed at any time, either with or without cause, by the
affirmative vote of a majority of the directors then in office at any meeting of
the Board of Directors. If a vacancy shall exist among the officers of the
Corporation, the Board of Directors may elect any person to fill such vacancy,
such person to hold office as provided in this Article VI.
SECTION 6.5. THE CHAIRMAN OF THE BOARD. The Chairman of the Board shall
preside at all meetings of the stockholders and of the Board of Directors and
shall see that orders and resolutions of the Board of Directors are carried into
effect. The Chairman of the Board shall perform such duties as may be assigned
to him by the Board of Directors.
SECTION 6.6. THE VICE CHAIRMAN OF THE BOARD. The Vice Chairman of the Board
shall, in the absence of the Chairman of the Board or in the event of the
Chairman of the
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Board's inability or refusal to act, perform the duties and exercise the powers
of the Chairman of the Board and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe. In the
absence or incapacity of the Chairman of the Board, if the Chairman of the Board
has been designated Chief Executive Officer, the Vice Chairman of the Board
shall perform the duties of the Chief Executive Officer and, when so acting,
shall have all the powers of and be subject to all the restrictions upon the
Chief Executive Officer.
SECTION 6.7. THE CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be the principal executive officer of the Corporation and shall, in general,
supervise and control all of the business and affairs of the Corporation, unless
otherwise provided by the Board of Directors. The Chief Executive Officer may
sign bonds, mortgages, certificates for shares and all other contracts and
documents whether or not under the seal of the Corporation except in cases where
the signing and execution thereof shall be expressly delegated by law, by the
Board of Directors or by these By-laws to some other officer or agent of the
Corporation. The Chief Executive Officer shall have general powers of
supervision and shall be the final arbiter of all differences between officers
of the Corporation, and the Chief Executive Officer's decision as to any matter
affecting the Corporation shall be final and binding as between the officers of
the Corporation, subject only to its Board of Directors.
SECTION 6.8. THE PRESIDENT. The President shall keep the Chairman of the
Board fully informed concerning the business of the Corporation under his
supervision. The President shall have concurrent power with the Chief Executive
Officer to sign bonds, mortgages, certificates for shares and other contracts
and documents, whether or not under the seal of the Corporation except in cases
where the signing and execution thereof shall be expressly delegated by law, by
the Board of Directors, or by these By-laws to some other officer or agent of
the Corporation. In general, the President shall perform all duties incident to
the office of the President and such other duties as the Chief Executive Officer
or the Board of Directors may from time to time prescribe.
SECTION 6.9. THE CHIEF FINANCIAL OFFICER. The Chief Financial Officer shall
be the principal financial and accounting officer of the Corporation. The Chief
Financial Officer shall: (a) have charge of and be responsible for the
maintenance of adequate books of account for the Corporation; (b) have charge
and custody of all funds and securities of the Corporation, and be responsible
therefor and for the receipt and disbursement thereof; and (c) perform all the
duties incident to the office of the Chief Financial Officer and such other
duties as from time to time may be assigned to him by the President or by the
Board of Directors. If required by the Board of Directors, the Chief Financial
Officer shall give a bond for the faithful discharge of the Chief Financial
Officer's duties in such sum and with such surety or sureties as the Board of
Directors may determine.
SECTION 6.10. THE VICE PRESIDENTS. In the absence of the President, the
Vice Presidents (in the order designated, or in the absence of any designation,
then in the order of their election) shall perform the duties of the President,
and when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Vice Presidents shall
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perform such other duties and have such other powers as the Chief Executive
Officer or the Board of Directors may from time to time prescribe.
SECTION 6.11. THE SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose, and shall perform like duties for the
standing committees when required. The Secretary shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors or the Chief Executive Officer, under whose supervision
the Secretary shall be. The Secretary shall have custody of the corporate seal
of the Corporation and the Secretary shall have authority to affix the same to
any instrument requiring it; and when so affixed, it may be attested by the
Secretary's signature. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
such officer's signature.
SECTION 6.12. CHAIRMAN AND VICE CHAIRMAN MAY SERVE AS CO-CHAIRMEN. The
Chairman of the Board and the Vice Chairman of the Board may, at the discretion
of the Board of Directors, be designated and serve as Co-Chairmen of the Board.
In the event of any such designation, the Co-Chairmen of the Board shall share
the authority and responsibility otherwise ascribed under these By-laws to the
Chairman of the Board and the Vice Chairman of the Board in such manner as the
Board of Directors may from time to time determine.
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ARTICLE VII
CERTIFICATES OF STOCK, TRANSFERS AND RECORD DATES
SECTION 7.1. FORM OF 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 (a) the Chairman of the Board, the Vice Chairman of the Board,
the President or the Chief Executive Officer, and (b) the Chief Financial
Officer or the Secretary of the Corporation; in any such case, certifying the
number of shares owned by such holder in the Corporation. 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 General Corporation Law of the State 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 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. Subject to the foregoing, certificates of stock of the
Corporation shall be in such form as the Board of Directors may from time to
time prescribe.
SECTION 7.2. FACSIMILE SIGNATURES. Where a certificate is countersigned by
a transfer agent other than the Corporation or its employee, or by a registrar
other than the Corporation or its employee, any other signatures on the
certificate may be facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
SECTION 7.3. 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, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or such owner's legal representative, to advertise the same in
such manner as the Corporation shall require and/or give the Corporation a bond
in such sum as it may direct as indemnity against any claim that may be made
against the Corporation or its transfer agent or registrar with respect to the
certificate alleged to have been lost, stolen or destroyed.
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SECTION 7.4. 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 books.
SECTION 7.5. REGISTERED STOCKHOLDERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner and to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not the
Corporation shall have express or other notice thereof, except as otherwise
provided by applicable law.
ARTICLE VIII
CONFLICT OF INTERESTS
SECTION 8.1. CONTRACT OR RELATIONSHIP NOT VOID. 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
that reason, or solely because such 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 director's or
officer's vote is counted for such purpose, if:
(i) the material facts as to such director's or officer's relationship
or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the
Board or committee 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; or
(ii) the material facts as to such director's or officer's 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
(iii) 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.
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SECTION 8.2. QUORUM. Common or 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 subject contract or transaction.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to applicable law. Dividends may be paid in cash, in property
or in shares of the capital stock of the Corporation or rights to acquire same,
subject to the provisions of the Corporation's Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the directors
shall think conducive to the interest of the Corporation, and the directors may
modify or abolish any such reserve in the manner in which it was created.
SECTION 9.2. CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 9.3. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
SECTION 9.4. SEAL. The corporate seal shall have inscribed thereon the name
of the Corporation and the words "Corporate Seal, Delaware." The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
SECTION 9.5. STOCK IN OTHER CORPORATIONS. Shares of any other corporation
which may from time to time be held by this Corporation may be represented and
voted at any meeting of stockholders of such corporation by the Chairman of the
Board, the Vice Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer or a Vice President of the Corporation,
or by any proxy appointed in writing by the Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer or a Vice President of the Corporation, or by any other person
or persons thereunto authorized by the Board of Directors. Shares represented by
certificates standing in the name of the Corporation may be endorsed for sale or
transfer in the name of the Corporation by the Chairman of the Board, the Vice
Chairman of the Board, the Chief Executive Officer, the President, the Chief
Financial Officer or a Vice President of the Corporation, or by any other
officer of officers thereunto authorized by the Board of
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Directors. Shares belonging to the Corporation need not stand in the name of the
Corporation, but may be held for the benefit of the Corporation in the
individual name of the Chief Financial Officer or of any other nominee
designated for the purpose by the Board of Directors.
ARTICLE X
AMENDMENTS
These By-laws may be altered, amended, or repealed, or new by-laws may be
adopted, only in the manner provided in the Corporation's Certificate of
Incorporation.
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