Exhibit 3.25
MUZAK CAPITAL CORPORATION
BYLAWS
OF
MUZAK, INC.
(a Delaware corporation)
ARTICLE I
OFFICES
SECTION 1. Registered Office. The registered office of Muzak, Inc.
(the "Corporation") in the State of Delaware shall be at Corporation Trust
Center, 1209 Orange Street, City of Wilmington, County of New Castle, State of
Delaware, 19801. and its registered agent at such address shall be The
Corporation Trust Company, or such other office or agent as the Board of
Directors of the Corporation (the "Board") shall from time to time select.
SECTION 2. Other Offices. The Corporation may also have an office or
offices, and keep the books and records of the Corporation, except as may
otherwise be required by law, at such other place or places, either within or
without the State of Delaware, as the Board may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. Place of Meeting. All meetings of the stockholders of the
Corporation shall be held at the office of the Corporation or at such other
places, within or without the State of Delaware, as may from time to time be
fixed by the Board.
SECTION 2. Annual Meetings. The annual meeting of the stockholders for
the election of directors and for the transaction of such other business as may
properly come before the meeting shall be held each year at such date and time,
within or without the State of Delaware, as the Board shall determine.
SECTION 3. Special Meetings. Except as otherwise required by law or
the Certificate of Incorporation of the Corporation (the "Certificate"), special
meetings of the stockholders for any purpose or purposes may be called by the
Chairman of the Board, by a majority of the entire Board, or the stockholders by
a majority vote of the voting power of all shares of capital stock then entitled
to vote generally in the election of directors.
SECTION 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of the stockholders, whether annual or special,
shall be given, either by personal delivery or by mail, not less than 10 nor
more than 60 days before the date of the meeting to each stockholder of record
entitled to notice of the meeting. If mailed, such notice shall be deemed given
when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation. Each such notice shall state the place, date and hour of the
meeting, and the purpose or purposes for which the meeting is called. Notice of
any meeting of stockholders shall not be required to be given to any stockholder
who shall attend such meeting in person or by proxy without protesting, prior to
or at the commencement of the meeting, the lack of proper notice to such
stockholder, or who shall sign a written waiver of notice thereof, whether
before or after such meeting. Notice of adjournment of a meeting of stockholders
need not be given if the time and place to which it is adjourned are announced
at such meeting, unless the adjournment is for more than 30 days or, after
adjournment, a new record date is fixed for the adjourned meeting.
SECTION 5. Quorum. Except as otherwise provided by law or by the
Certificate, the holders of a majority of the votes entitled to be cast by the
stockholders entitled to vote generally, present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders; provided, however, that in the case of any vote to be taken by
classes, the holders of a majority of the votes entitled to be cast by the
stockholders of a particular class shall constitute a quorum for the transaction
of business by such class. When a quorum is once present it is not broken by the
subsequent withdrawal of any stockholder.
SECTION 6. Adjournments. The chairman of the meeting or the holders of
a majority of the votes entitled to be cast by the stockholders who are present
in person or by proxy may adjourn the meeting from time to time whether or not a
quorum is present. In the event that a quorum does not exist with respect to any
vote to be taken by a particular class, the chairman of the meeting or the
holders of a majority of the votes entitled to be cast by the stockholders of
such class who are
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present in person or by proxy may adjourn the meeting with respect to the
vote(s) to be taken by such class. At such adjourned meeting at which a quorum
may be present, any business may be transacted which might have been transacted
at the meeting as originally called.
SECTION 7. Order of Business. At each meeting of the stockholders, the
Chairman of the Board or, in the absence of the Chairman of the Board, such
person as shall be selected by the Board shall act as chairman of the meeting.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the Corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls.
SECTION 8. List of Stockholders. It shall be the duty of the Secretary
or other officer who has charge of the stock ledger to prepare and make, at
least 10 days before each meeting of the stockholders, a complete list of the
stockholders entitled to vote thereat, arranged in alphabetical order, and
showing the address of each stockholder and the number of shares registered in
such stockholder's name. Such list shall be produced and kept available at the
times and places required by law.
SECTION 9. Voting. (a) Except as otherwise provided by law or by the
Certificate, each stockholder of record of any class or series of capital stock
of the Corporation shall be entitled at each meeting of stockholders to such
number of votes for each share of such stock as may be fixed in the Certificate
or in the resolution or resolutions adopted by the Board providing for the
issuance of such stock, registered in such stockholder's name on the books of
the Corporation:
(i) on the date fixed pursuant to Section 6 of Article VII of
these Bylaws as the record date for the determination of stockholders
entitled to notice of and to vote at such meeting; or
(ii) 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 of
such meeting is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is
held.
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(b) Each stockholder entitled to vote at any meeting of stockholders
may authorize not in excess of three persons to act for such stockholder by
proxy. Any such proxy shall be delivered to the secretary of such meeting at or
prior to the time designated for holding such meeting. No such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period.
(c) At each meeting of the stockholders, all corporate actions to be
taken by vote of the stockholders (except as otherwise required by law and
except as otherwise provided in the Certificate or these Bylaws) shall be
authorized by a majority of the votes cast affirmatively or negatively by the
stockholders, and where a separate vote by class is required, a majority of the
votes cast affirmatively or negatively by the stockholders of such class shall
be the act of such class.
(d) Unless required by law or determined by the chairman of the
meeting to be advisable, the vote on any matter, including the election of
directors, need not be by written ballot. In the case of a vote by written
ballot, each ballot shall be signed by the stockholder voting, or by such
stockholder's proxy.
(e) Any action required or permitted to be taken at any meeting of
stockholders may, except as otherwise required by law or the Certificate, 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
record of the issued and outstanding capital stock of the Corporation having a
majority 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, and
the writing or writings are filed with the permanent records of the Corporation.
Prompt notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
SECTION 10. Inspectors. The chairman of the meeting may appoint one or
more inspectors to act at any meeting of stockholders. If appointed, such
inspectors shall perform such duties as shall be required by law and as shall be
specified by the chairman of the meeting. Inspectors need not be stockholders.
No director or nominee for the office of director shall be appointed such
inspector.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of the Board, which may exercise all
such powers of the Corporation and do all such lawful acts and things as are not
by law or by the Certificate directed or required to be exercised or done by the
stockholders.
SECTION 2. Number, Qualification and Election. (a) Except as otherwise
fixed by or pursuant to the provisions of Article IV of the Certificate relating
to the rights of the holders of any class or series of stock having preference
over the common stock of the Corporation as to dividends or upon liquidation,
the number of directors of the Corporation shall be determined from time to time
by the Board by the affirmative vote of directors constituting at least a
majority of the entire Board. The use of the phrase "entire Board" herein refers
to the total number of directors which the Corporation would have if there were
no vacancies.
(b) Directors who are elected at an annual meeting of the
stockholders, and directors who are elected in the interim to fill vacancies and
newly created directorships, shall hold office until the next annual meeting of
stockholders and until his or her successor shall be elected and qualified,
subject, however, to his or her prior death, resignation, retirement or removal
from office.
(c) Each director shall be at least 18 years of age. Directors need
not be stockholders of the Corporation.
(d) In any election of directors held at a meeting of stockholders,
the persons receiving a plurality of the votes cast by the stockholders entitled
to vote thereon at such meeting who are present or represented by proxy, up to
the number of directors to be elected in such election, shall be deemed elected.
SECTION 3. Quorum and Manner of Acting. Except as otherwise provided
by law, the Certificate or these Bylaws, a majority of the entire Board shall
constitute a quorum for the transaction of business at any meeting of the Board,
and, except as so provided, the vote of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the Board. The
chairman of the meeting
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or a majority of the directors present may adjourn the meeting to another time
and place whether or not a quorum is present. 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.
SECTION 4. Place of Meeting. The Board may hold its meetings at such
place or places within or without the State of Delaware as the Board may from
time to time determine or as shall be specified or fixed in the respective
notice or waivers of notice thereof.
SECTION 5. Regular Meetings. Regular meetings of the Board shall be
held at such times and places as the Chairman of the Board or the Board shall
from time to time by resolution determine. If any day fixed for a regular
meeting shall be a legal holiday under the laws of the place where the meeting
is to be held, the meeting which would otherwise be held on that day shall be
held at the same hour on the next succeeding business day.
SECTION 6. Special Meetings. Special meetings of the Board shall be
held whenever called by the Chairman of the Board or by a majority of the
directors then in office.
SECTION 7. Notice of Meetings. Notice of regular meetings of the Board
or of any adjourned meeting thereof need not be given. Notice of each special
meeting of the Board shall be given by overnight delivery service or mailed to
each director, in either case addressed to such director at such director's
residence or usual place of business, at least two days before the day on which
the meeting is to be held or shall be sent to such director at such place by
telegraph or telecopy or be given personally or by telephone, not later than the
day before the meeting is to be held, but notice need not be given to any
director who shall, either before or after the meeting, submit a signed waiver
of such notice or who shall attend such meeting other than for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting was not lawfully called or convened. Every such
notice shall state the time and place but need not state the purpose of the
meeting.
SECTION 8. Organization. At all meetings of the Board, the Chairman,
if any, or if none or in the Chairman's absence or inability to act the
President, or in the President's absence or inability to act any Vice-President
who is a member of the Board of Directors, or in such Vice-President's absence
or inability to act a chairman chosen by the directors, shall preside. The
Secretary of the Corporation
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shall act as secretary at all meetings of the Board when present, and, in the
Secretary's absence, the presiding officer may appoint any person to act as
secretary.
SECTION 9. Rules and Regulations. The Board may adopt such rules and
regulations not inconsistent with the provisions of law, the Certificate or
these Bylaws for the conduct of its meetings and management of the affairs of
the Corporation as the Board may deem proper.
SECTION 10. Participation in Meeting by Means of Communication
Equipment. Any one or more members of the Board or any committee thereof may
participate in any meeting of the Board or of any such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation
in a meeting shall constitute presence in person at such meeting.
SECTION 11. Action without Meeting. Any action required or permitted
to be taken at any meeting of the Board or any committee thereof may be taken
without a meeting if all of the members of the Board or of any such committee
consent thereto in writing and the writing or writings are filed with the
minutes or proceedings of the Board or of such committee.
SECTION 12. Resignations. Any director of the Corporation may at any
time resign by giving written notice to the Board, the Chairman of the Board,
the President or the Secretary. Such resignation shall take effect at the time
specified therein or, if the time be not specified therein, upon receipt
thereof; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 13. Removal of Directors. Any director (including all members
of the Board) may be removed from office at any time, with or without cause, by
the holders of a majority of the shares of capital stock of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class.
SECTION 14. Vacancies. Except as otherwise required by law and subject
to the rights of the holders of any class or series of stock having a preference
over the common stock of the Corporation as to dividends or upon liquidation,
any vacancy in the Board for any reason and any newly created directorship
resulting by reason of any increase in the number of directors may be filled by
the Board by resolution adopted by the affirmative vote of a majority of the
remaining directors then
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in office, even though less than a quorum (or by a sole remaining director) or
by the stockholders upon the affirmative vote of a majority of the shares of
capital stock of the Corporation then entitled to vote generally in the election
of directors, voting together as a single class. Any director so appointed shall
hold office until the next meeting of stockholders at which directors of the
class for which such director has been chosen are to be elected and until his or
her successor is elected and qualified.
SECTION 15. Compensation. Each director, in consideration of such
person serving as a director, shall be entitled to receive from the Corporation
such amount per annum and such fees for attendance at meetings of the Board or
of committees of the Board, or both, as the Board shall from time to time
determine. In addition, each director shall be entitled to receive from the
Corporation reimbursement for the reasonable expenses incurred by such person in
connection with the performance of such person's duties as a director. Nothing
contained in this Section 15 of this Article III shall preclude any director
from serving the Corporation or any of its subsidiaries in any other capacity
and receiving proper compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD OF DIRECTORS
SECTION 1. Establishment of Committees of the Board of Directors;
Election of Members of Committees of the Board of Directors; Functions of
Committees of the Board of Directors. The Board may, in accordance with and
subject to the Delaware General Corporation Law ("DGCL"), from time to time
establish committees of the Board to exercise such powers and authorities of the
Board, and to perform such other functions, as the Board may from time to time
determine.
SECTION 2. Procedure; Meetings; Quorum. Regular meetings of committees
of the Board, of which no notice shall be necessary, may be held at such times
and places as shall be fixed by resolution adopted by a majority of the members
thereof. Special meetings of any committee of the Board shall be called at the
request of a majority of the members thereof. Notice of each special meeting of
any committee of the Board shall be given by overnight delivery service or
mailed to each member, in either case addressed to such member at such member's
residence or normal place of business, at least two days before the day on which
the meeting is to be held or shall be sent to such members at such place by
telegraph or telecopy or be given personally or
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by telephone, not later than the day before the meeting is to be held, but
notice need not be given to any member who shall, either before or after the
meeting, submit a signed waiver of such notice or who shall attend such meeting
other than for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting was not lawfully
called or convened. Any special meeting of any committee of the Board shall be a
legal meeting without any notice thereof having been given, if all the members
thereof shall be present thereat. Notice of any adjourned meeting of any
committee of the Board need not be given. Any committee of the Board may adopt
such rules and regulations not inconsistent with the provisions of law, the
Certificate or these Bylaws for the conduct of its meetings as such committee of
the Board may deem proper. A majority of the members of any committee of the
Board shall constitute a quorum for the transaction of business at any meeting,
and the vote of a majority of the members thereof present at any meeting at
which a quorum is present shall be the act of such committee. Each committee of
the Board shall keep written minutes of its proceedings and shall report on such
proceedings to the Board.
SECTION 3. Action by Written Consent. Any action required or permitted
to be taken at any meeting of any committee of the Board may be taken without a
meeting if all the members of the committee consent thereto in writing, and the
writing or writings are filed with the minutes of proceedings of the committee.
SECTION 4. Term; Termination. In the event any person shall cease to
be a director of the Corporation, such person shall simultaneously therewith
cease to be a member of any committee appointed by the Board.
ARTICLE V
OFFICERS
SECTION 1. Number; Term of Office. The Board shall elect the officers
of the Corporation, which shall include a President and a Secretary, and may
include, by election or appointment, one of more Vice-Presidents (any one or
more of whom may be given an additional designation of rank, such as "Executive
Vice-President" or "Senior Vice-President," or function), a Treasurer and such
Assistant Secretaries, such Assistant Treasurers and such other officers as the
Board may from time to time deem proper. Each officer shall have such powers and
duties as may be prescribed by these Bylaws and as may be assigned by the Board
or the President. Any
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two or more offices may be held by the same person except the offices of
President and Secretary; provided, however, that no officer shall execute,
acknowledge or verify any instrument in more than one capacity if such
instrument is required by law, the Certificate or these Bylaws to be executed,
acknowledged or verified by two or more officers. The Board may from time to
time authorize any officer to appoint and remove any such other officers and
agents and to prescribe their powers and duties. The Board may require any
officer or agent to give security for the faithful performance of such person's
duties.
SECTION 2. Term of Office; Removal; Remuneration. Each officer shall
hold office for such term as may be prescribed by the Board and until such
person's successor shall have been chosen and shall qualify, or until such
person's death or resignation, or until such person's removal in the manner
hereinafter provided. Any officer may be removed, either with or without cause,
by the Board.
SECTION 3. Resignation. Any officer may resign at any time by giving
notice to the Board, the President or the Secretary. Any such resignation shall
take effect at the date of receipt of such notice or at any later date specified
therein; and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 4. Vacancies. A vacancy in any office because of death,
resignation, removal or any other cause may be filled for the unexpired portion
of the term by the Board.
SECTION 5. Chairman of the Board; Powers and Duties. The Chairman of
the Board, subject to the control of the Board, shall preside at all meetings of
the stockholders and the Board. Any document may be signed by the Chairman of
the Board or any other person who may be thereunto authorized by the Board or
the Chairman of the Board. The Chairman of the Board may appoint such assistant
officers as are deemed necessary.
SECTION 6. President; Chief Executive Officer; Executive Vice
Presidents, Senior Vice Presidents and Vice Presidents; Powers and Duties. The
President shall be the chief executive officer of the Corporation and shall have
such duties as customarily pertain to that office. The President shall have
general management and supervision of the property, business and affairs of the
Corporation and over its other officers; may appoint and remove assistant
officers and other agents and employees. The President and each Executive Vice
President, each Senior Vice
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President, and each Vice President shall have such powers and perform such
duties as may be assigned by the Board or the President. The Board may elect one
or more persons to be the President and/or Chief Executive Officer of a division
or business unit of the Corporation.
SECTION 7. Secretary and Assistant Secretary; Powers and Duties. The
Secretary shall attend all meetings of the stockholders and the Board and shall
keep the minutes for such meetings in one or more books provided for that
purpose. The Secretary shall be custodian of the corporate records, except those
required to be in the custody of the Treasurer or the Controller, shall keep the
seal of the Corporation, and shall perform all of the duties incident to the
office of Secretary, as well as such other duties as may be assigned by the
Chairman of the Board or the Board.
The Assistant Secretaries shall perform such of the Secretary's duties
as the Secretary shall from time to time direct. In case of the absence or
disability of the Secretary or a vacancy in the office, an Assistant Secretary
designated by the Chairman of the Board or by the Secretary, if the office is
not vacant, shall perform the duties of the Secretary.
SECTION 8. Chief Financial Officer; Powers and Duties. The Chief
Financial Officer shall be responsible for maintaining the financial integrity
of the Corporation, shall prepare the financial plans for the Corporation, and
shall monitor the financial performance of the Corporation and its subsidiaries,
as well as performing such other duties as may be assigned by the Chairman of
the Board or the Board.
SECTION 9. Treasurer and Assistant Treasurers; Powers and Duties. The
Treasurer shall have care and custody of the funds and securities of the
Corporation, shall deposit such funds in the name and to the credit of the
Corporation with such depositories as the Treasurer shall approve, shall
disburse the funds of the Corporation for proper expenses and dividends, and as
may be ordered by the Board, taking proper vouchers for such disbursements. The
Treasurer shall perform all of the duties incident to the office of Treasurer,
as well as such other duties as may be assigned by the Board or the President.
The Assistant Treasurers shall perform such of the Treasurer's duties
as the Treasurer shall from time to time direct. In case of the absence or
disability of the Treasurer or a vacancy in the office, an Assistant Treasurer
designated by the President or by the Treasurer, if the office is not vacant,
shall perform the duties of the Treasurer.
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SECTION 10. Controller and Assistant Controllers; Powers and Duties.
The Controller shall be the chief accounting officer of the Corporation and
shall keep and maintain in good and lawful order all accounts required by law
and shall have sole control over, and ultimate responsibility for, the accounts
and accounting methods of the Corporation and the compliance of the Corporation
with all systems of accounts and accounting regulations prescribed by law. The
Controller shall audit, to such extent and at such times as may be required by
law or as the Controller may think necessary, all accounts and records of
corporate funds or property, by whomsoever kept, and for such purposes shall
have access to all such accounts and records. The Controller shall make and sign
all necessary and proper accounting statements and financial reports of the
Corporation, and shall perform all of the duties incident to the office of
Controller, as well as such other duties as may be assigned by the President or
the Board.
The Assistant Controllers shall perform such of the Controller's
duties as the Controller shall from time to time direct. In case of the absence
or disability of the Controller or a vacancy in the office, an Assistant
Controller designated by the President or the Controller, if the office is not
vacant, shall perform the duties of the Controller.
SECTION 11. Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board, or an authorized committee thereof, or in such
manner as the Board, or any authorized committee thereof, shall provide. No
officer shall be disqualified from receiving a salary by reason of also being a
director of the Corporation.
ARTICLE VI
INDEMNIFICATION
SECTION 1. Right to Indemnification. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a "Proceeding"), by reason of the
fact (a) that he or she is or was a director or officer of the corporation, or
(b) that he or she, being at the time a director or officer of the corporation,
is or was serving at the request of the corporation as a director, officer,
member, employee, fiduciary or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including
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service with respect to an employee benefit plan (collectively, "another
enterprise" or "other enterprise"), shall be indemnified and held harmless by
the corporation to the fullest extent permitted under the DGCL as the same
exists or may hereafter be amended, against all expense, liability and loss
(including, without limitation, attorneys' and other professionals' fees and
expenses, claims, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) actually and reasonably incurred or suffered by such person
in connection therewith ("Losses"). Without diminishing the scope of
indemnification provided by this Section 1, such persons shall also be entitled
to the further rights set forth below.
SECTION 2. Actions, Suits Or Proceedings Other Than Those By Or In The
Right Of The Corporation. Subject to the terms and conditions of this Article,
the corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any Proceeding (other than an action by or in
the right of the corporation) by reason of the fact that such person is or was a
director, officer or employee of the corporation, or, being at the time a
director, officer or employee of the corporation, is or was serving at the
request of the corporation as a director, officer, member, employee, fiduciary
or agent of another enterprise, against all Losses, actually and reasonably
incurred or suffered by such person in connection with such Proceeding if such
person acted in good faith and in a manner reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the conduct
was unlawful. The termination of any Proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that the conduct was unlawful.
SECTION 3. Actions, Suits Or Proceedings By Or In The Right Of The
Corporation. Subject to the terms and conditions of this Article, the
corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any Proceeding by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or was
a director, officer or employee of the corporation, or being at the time a
director, officer or employee of the corporation, is or was serving at the
request of the corporation as a director, officer, member, employee, fiduciary
or agent of another enterprise against all Losses actually and reasonably
incurred or suffered by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner
reasonably believed to be in or not opposed to the best interests of the
corporation
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except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such 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, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
SECTION 4. Authorization of Indemnification. Any indemnification under
this Article (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
a person is proper in the circumstances because such person has met the
applicable standard of conduct required by Section 1 or set forth in Section 2
or 3 of this Article, as the case may be. Such determination shall be made in a
reasonably prompt manner (i) by the Board of Directors by a majority vote of
directors who were not parties to such action, suit or proceeding, whether or
not they constitute a quorum of the Board of Directors, (ii) if there are no
such directors, or if such directors so direct, by independent legal counsel in
a written opinion, (iii) by the stockholders or (iv) as the DGCL may otherwise
permit. To the extent, however, that a director, officer, employee or agent of
the corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys' and other professionals' fees) actually and reasonably incurred by
such person in connection therewith, without the necessity of authorization in
the specific case.
SECTION 5. Good Faith Defined. For purposes of any determination under
Section 4 of this Article, a person shall be deemed to have acted in good faith
if the action is based on (a) the records or books of account of the corporation
or another enterprise, or on information supplied to such person by the officers
of the corporation or another enterprise in the course of their duties or on (b)
the advice of legal counsel for the corporation or another enterprise, or on
information or records given or reports made to the corporation or another
enterprise by an independent certified public accountant, independent financial
adviser, appraiser or other expert selected with reasonable care by the
corporation or the other enterprise. The provisions of this Section 5 shall not
be deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct.
SECTION 6. Proceedings Initiated by Indemnified Persons.
Notwithstanding any provisions of this Article to the contrary, the corporation
shall not
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indemnify any person or make advance payments in respect of Losses to any person
pursuant to this Article in connection with any Proceeding (or portion thereof)
initiated against the corporation by such person unless such Proceeding (or
portion thereof) is authorized by the Board of Directors or its designee;
provided, however, that this prohibition shall not apply to a counterclaim,
cross-claim or third-party claim brought in any Proceeding or to any claims
provided for in Section 7 of this Article.
SECTION 7. Indemnification By A Court. Notwithstanding any contrary
determination in the specific case under Section 4 of this Article, and
notwithstanding the absence of any determination thereunder, any director,
officer or employee may apply to any court of competent jurisdiction for
indemnification to the extent otherwise permissible under Section 1, 2 or 3 of
this Article. Notice of any application for indemnification pursuant to this
Section 7 shall be given to the corporation promptly upon the filing of such
application.
SECTION 8. Losses Payable In Advance. Losses reasonably incurred by an
officer or director in defending any threatened or pending Proceeding shall be
paid by the corporation in advance of the final disposition of such Proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the corporation as authorized in this Article.
Losses shall be reasonably documented by the officer or director and required
payments shall be made promptly by the corporation. Losses incurred by other
employees may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
SECTION 9. Non-exclusivity and Survival of Indemnification. The
indemnification and advancement of expenses provided by or granted pursuant to
this Article shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, any bylaw, agreement, contract, vote of
stockholders or of disinterested directors, or pursuant to the direction
(howsoever embodied) of any court of competent jurisdiction or otherwise. The
provisions of this Article shall not be deemed to preclude the indemnification
of any person who is not specified in Section 1, 2 or 3 of this Article but whom
the corporation has the power or obligation to indemnify under the provisions of
the DGCL, or otherwise. The rights conferred by this Article shall continue as
to a person who has ceased to be a director, officer or employee and shall inure
to the benefit of such person and the heirs, executors, administrators and other
comparable legal representatives of such person. The rights conferred in this
Article shall be enforceable as contract rights, and shall continue to exist
after any rescission or
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restrictive modification hereof with respect to events occurring prior thereto.
No rights are conferred in this Article for the benefit of any person
(including, without limitation, officers, directors and employees of
subsidiaries of the corporation) in any capacity other than as explicitly set
forth herein.
SECTION 10. Meaning of certain terms in connection with Employee
Benefit Plans. etc. For purposes of this Article, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; references to "serving at the request of the corporation" shall
include any service as a director, officer or employee of the corporation which
imposes duties on, or involves services by, such director, officer or employee,
with respect to an employee benefit plan, its participants or beneficiaries; and
a person who has acted in good faith and in a manner 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.
SECTION 11. Insurance. The corporation may, but shall not be required
to, purchase and maintain insurance on behalf of any person who is or was a
director, officer or employee of the corporation, or is or was serving at the
request of the corporation as a director, officer, member, employee, fiduciary
or agent of another against any liability asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the corporation would have the power or the
obligation to indemnify such person against such liability under the provisions
of this Article.
SECTION 12. Severability. If any provision or provisions of this
Article VI shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining
provisions of this Article VI (including, without limitation, all portions of
any paragraph of this Article VI containing any such provision held to be
invalid, illegal or unenforceable, that are not themselves invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby; and (b) to
the fullest extent possible, the provisions of this Article VI (including,
without limitation, all portions of any paragraph of this Article VI containing
any such provision held to be invalid, illegal or unenforceable, that are not
themselves invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
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ARTICLE VII
CAPITAL STOCK
SECTION 1. Share Ownership. (a) Holders of shares of stock of each
class of the Corporation shall be recorded on the books of the Corporation and
ownership of such stock shall be evidenced by a certificate or other form as
shall be approved by the Board. Certificates representing shares of stock of
each class shall be signed by, or in the name of, the Corporation by the
Chairman or Vice-Chairman of the Board, or the President or any Vice President
and by the Secretary or any Assistant Secretary or the Treasurer or any
Assistant Treasurer of the Corporation, and sealed with the seal of the
Corporation, which may be a facsimile thereof. Any or all such signatures and
the signatures of any transfer agent or registrar may be facsimiles. Although
any officer, transfer agent or registrar whose manual or facsimile signature is
affixed to such a certificate ceases to be such officer, transfer agent or
registrar before such certificate has been issued, the certificate may
nevertheless be issued by the Corporation with the same effect as if such
officer, transfer agent or registrar were still such at the date of its issue.
(b) The stock ledger and blank share certificates shall be kept by the
Secretary or by a transfer agent or by a registrar or by any officer or agent
designated by the Board.
SECTION 2. Transfer of Shares. Transfers of shares of stock of each
class of the Corporation shall be made only on the books of the Corporation by
the holder thereof, or by such holder's attorney thereunto authorized by a power
of attorney duly executed and filed with the Secretary or a transfer agent for
such stock, if any, and on surrender of the certificate or certificates, if any,
for such shares properly endorsed or accompanied by a duly executed stock
transfer power (or by proper evidence of succession, assignment or authority to
transfer) and the payment of any taxes thereon; provided, however, that the
Corporation shall be entitled to recognize and enforce any lawful restriction on
transfer. The person in whose name shares are registered on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation; provided, however, that whenever any transfer of shares shall be
made for collateral security and not absolutely, and written notice thereof
shall be given to the Secretary or to such transfer agent, such fact shall be
stated in the entry of the transfer. No transfer of shares shall be valid as
against the Corporation, its stockholders and creditors for any purpose, until
it shall have been
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entered in the stock records of the Corporation by an entry showing from and to
whom transferred.
SECTION 3. Registered Stockholders and Addresses of Stockholders. (a)
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 applicable law.
(b) Each stockholder shall designate to the Secretary or transfer
agent of the Corporation an address at which notices of meetings and all other
corporate notices may be delivered or mailed to such person, and, if any
stockholder shall fail to designate such address, corporate notices may be
delivered to such person by mail directed to such person at such person's post
office address, if any, as the same appears on the stock record books of the
Corporation or at such person's last known post office address.
SECTION 4. Lost. Stolen, Destroyed and Mutilated Certificates. The
Corporation may issue to any holder of shares of stock the certificate for which
has been lost, stolen, destroyed or mutilated a new certificate or certificates
for shares, upon the surrender of the mutilated certificate or, in the case of
loss, theft or destruction of the certificate, upon satisfactory proof of such
loss, theft or destruction. The Board, or a committee designated thereby, or the
transfer agents and registrars for the stock, may, in their discretion, require
the owner of the lost, stolen or destroyed certificate, or such person's legal
representative, to give the Corporation a bond in such sum and with such surety
or sureties as they may direct to indemnify the Corporation and said transfer
agents and registrars against any claim that may be made on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 5. Regulations. The Board may make such additional rules and
regulations as it may deem expedient concerning the issue and transfer of
certificates representing shares of stock of each class of the Corporation and
may make such rules and take such action as it may deem expedient concerning the
issue of certificates in lieu of certificates claimed to have been lost,
destroyed, stolen or mutilated.
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SECTION 6. Fixing Date for Determination of Stockholders of Record.
(a) In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to receive payment of any dividend or other distribution or
allotment or 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 may fix, in advance, a record date, which shall not be more
than 60 nor less than 10 days before the date of such meeting, nor more than 60
days prior to any other action. A determination of stockholders entitled to
notice of or to vote at a meeting of the stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board. Any stockholder of record seeking to
have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board to fix a record
date. The Board shall promptly, but in all events within 10 days after the date
on which such a request is received, adopt a resolution fixing the record date.
If no record date has been fixed by the Board within 10 days of the date on
which such a request is received, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no
prior action by the Board is required by applicable law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or any officer or agent
of the Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Delivery made to the Corporation's registered
office shall be by hand or by certified or registered mail, return receipt
requested. If no record date has been fixed by the Board and prior action by
the Board is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the board adopts
the resolution taking such prior action.
SECTION 7. Transfer Agents and Registrars. The Board may appoint, or
authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
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ARTICLE VIII
DIVIDENDS
Subject always to the provisions of law and the Certificate, the Board
shall have full power to determine whether any, and, if any, what part of any,
funds legally available for the payment of dividends shall be declared as
dividends and paid to stockholders; the division of the whole or any part of
such funds of the Corporation shall rest wholly within the lawful discretion of
the Board, and it shall not be required at any time, against such discretion, to
divide or pay any part of such funds among or to the stockholders as dividends
or otherwise; and 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 from time to time, in its absolute discretion, thinks 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 shall think conducive to the interest of the Corporation, and the Board
may modify or abolish any such reserve in the manner in which it was created.
ARTICLE IX
CORPORATE SEAL
The Board shall provide a corporate seal which shall have inscribed
thereon the name of the Corporation and the year of its incorporation, and shall
be in such form and contain such other words and/or figures as the Board shall
determine. The corporate seal may be used by printing, engraving, lithographing,
stamping or otherwise making, placing or affixing, or causing to be printed,
engraved, lithographed, stamped or otherwise made, placed or affixed, upon any
paper or document, by any process whatsoever, an impression, facsimile or other
reproduction of said corporate seal.
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ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall be fixed, and shall be
subject to change, by the Board. Unless otherwise fixed by the Board, the fiscal
year of the Corporation shall be the calendar year.
ARTICLE XI
WAIVER OF NOTICE
Whenever notice is required to be given by these Bylaws or by the
Certificate of Incorporation or by law, a written waiver thereof, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to notice.
ARTICLE XII
BANK ACCOUNTS, DRAFTS, CONTRACTS, ETC.
SECTION 1. Bank Accounts and Drafts. In addition to such bank accounts
as may be authorized by the Board, the Chief Financial Officer or any person
designated by the Chief Financial Officer, whether or not an employee of the
Corporation, may authorize such bank accounts to be opened or maintained in the
name and on behalf of the Corporation as he may deem necessary or appropriate,
payments from such bank accounts to be made upon and according to the check of
the Corporation in accordance with the written instructions of the Treasurer, or
other person so designated by the Treasurer.
SECTION 2. Contracts. The Board may authorize any person or persons,
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.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The
Chairman, the President or any other person designated by either of them shall
have the
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power and authority to execute and deliver proxies, powers of attorney and other
instruments on behalf of the Corporation in connection with the rights and
powers incident to the ownership of stock by the Corporation. The Chairman, the
President or any other person authorized by proxy or power of attorney executed
and delivered by either of them on behalf of the Corporation may attend and vote
at any meeting of stockholders of any company in which the Corporation may hold
stock, and may exercise on behalf of the Corporation any and all of the rights
and powers incident to the ownership of such stock at any such meeting, or
otherwise as specified in the proxy or power of attorney so authorizing any such
person. The Board, from time to time, may confer like powers upon any other
person.
SECTION 4. Financial Reports. The Board may appoint the primary
financial officer or other fiscal officer and/or the Secretary or any other
officer to cause to be prepared and furnished to stockholders entitled thereto
any special financial notice and/or financial statement, as the case may be,
which may be required by any provision of law.
ARTICLE XIII
AMENDMENTS
The Board shall have the power to adopt, amend or repeal these Bylaws
by the affirmative vote of at least a majority of the members then in office and
the stockholders shall have the power to adopt, amend or repeal these Bylaws
upon the affirmative vote of the holders of a majority of the voting power of
all shares of capital stock of the Corporation then entitled to vote generally
in the election of directors, voting as a single class (notwithstanding the fact
that approval by a lesser percentage may be permitted by the DGCL).
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