Exhibit 3.2
================================================================================
FORM OF
AMENDED AND RESTATED
BYLAWS
OF
XXXXX XXXXXXX COMPANIES
Incorporated under the Laws of the State of Delaware
AS OF [ ], 2003
================================================================================
ARTICLE I
OFFICES
SECTION 1.1 PRINCIPAL DELAWARE OFFICE. The registered office
of the Corporation in the State of Delaware shall be in the City of Wilmington,
County of New Castle, and the name and address of the Registered Agent in charge
thereof shall be Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx Xxxxxx, Xxxxxxxx 00000.
SECTION 1.2 OTHER OFFICES. The Corporation may also have
offices in such other places, either within or without the State of Delaware, as
the Board of Directors from time to time may designate or the business of the
Corporation may from time to time require.
ARTICLE II
STOCKHOLDERS
SECTION 2.1 MEETINGS OF STOCKHOLDERS.
(a) ANNUAL MEETINGS. The annual meeting of the stockholders of
the Corporation shall be held on such date and at such time as may be fixed by
resolution of the Board of Directors. At the annual meeting stockholders shall
elect directors and transact such other business as properly may be brought
before the meeting.
(b) SPECIAL MEETINGS. Special meetings of the stockholders may
be called only by the Chairman of the Board or the Board of Directors pursuant
to a resolution approved by a majority of the total number of directors which
the Corporation would have if there were no vacancies (the "Whole Board").
(c) PLACE OF MEETINGS. Meetings of the stockholders shall be
held at such place, either within or without the State of Delaware, as the Board
of Directors shall determine.
(d) NOTICE OF MEETING. Written notice, stating the place, day
and hour of the meeting shall be delivered by the Corporation not less than ten
(10) days nor more than sixty (60) days before the date of the meeting to each
stockholder of record entitled to vote at such meeting. Notice of a special
meeting shall also state the purpose or purposes for which the meeting has been
called. Without limiting the manner by which notice may otherwise be given,
notice may be given by a form of electronic transmission that satisfies the
requirements of the Delaware General Corporation Law and has been consented to
by the stockholder to whom notice is given. If mailed, such notice shall be
deemed to be delivered when deposited in the United States mail with postage
thereon prepaid, addressed to the stockholder at his or her address as it
appears in the Corporation's records. Meetings may be held without notice if all
stockholders entitled to vote are present, or if notice is waived by those not
present in accordance with Article VIII of these Bylaws. Any previously
scheduled meeting of the stockholders may be postponed, and any special meeting
of the stockholders may be cancelled, by resolution of the Board of Directors
upon public notice given prior to the date previously scheduled for such meeting
of stockholders. 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 (or any supplement thereto).
(e) CHAIRMAN OF STOCKHOLDER'S MEETING. The Chairman of the
Board, or in the Chairman's absence, a Vice Chairman, or in the absence of any
Vice Chairman, the Chief Executive Officer, or in the absence of the Chief
Executive Officer, the Secretary, or in the absence of the Secretary, a chairman
chosen by a majority of the directors present, shall act as chairman of the
meetings of the stockholders.
SECTION 2.2 QUORUM OF STOCKHOLDERS; ADJOURNMENT; REQUIRED
VOTE.
(a) QUORUM OF STOCKHOLDERS; ADJOURNMENT. Except as otherwise
provided by law, by the Amended and Restated Certificate of Incorporation (the
"Certificate of Incorporation") or by these Bylaws, the holders of a majority of
the voting power of the outstanding shares of the Corporation entitled to vote
generally in the election of directors (the "Voting Stock"), present in person
or represented by proxy, shall constitute a quorum at a meeting of the
stockholders, except that when specified business is to be voted on by a class
or series of stock voting as a class, the holders of a majority of the shares of
such class or series shall constitute a quorum of such class or series for the
transaction of such business. The chairman of the meeting or a majority of the
shares so represented may adjourn the meeting from time to time, whether or not
there is such a quorum. No notice of the time and place of adjourned meetings
need be given, except that notice of the adjourned meeting shall be required if
the adjournment is for more than 30 days or if after the adjournment a new
record date is fixed for the adjourned meeting. The stockholders present at a
duly called meeting at which a quorum is present may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
(b) REQUIRED VOTE. The affirmative vote of a majority of the
voting power of the shares present in person or represented by proxy at the
meeting and entitled to vote on the matter shall be the act of the stockholders,
except as otherwise provided by express provision of law, Certificate of
Incorporation or these Bylaws requiring a larger or different vote, in which
case such express provision shall govern and control the decision of such
matter.
SECTION 2.3 VOTING BY STOCKHOLDERS; PROCEDURES FOR ELECTION OF
DIRECTORS.
(a) VOTING BY STOCKHOLDERS. Each stockholder of record
entitled to vote at any meeting may do so in person or by proxy appointed by
instrument in writing or in such other manner prescribed by the Delaware General
Corporation Law, subscribed by such stockholder or his or her duly authorized
attorney in fact.
(b) PROCEDURE FOR ELECTION OF DIRECTORS. Election of directors
at all meetings of the stockholders at which directors are to be elected shall
be by ballot, and, subject to the rights of the holders of any series of
Preferred Stock to elect directors under specified circumstances, a plurality of
the votes cast thereat shall elect directors.
SECTION 2.4 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(a) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (A) pursuant to the Corporation's notice of
meeting, (B) by or at the direction of the Board of Directors, or (C)
2
by any stockholder of the Corporation who was a stockholder of record at the
time of giving of notice provided for in this Bylaw, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this Bylaw.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (C) of paragraph
(a)(1) of this Bylaw, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
90th day nor earlier than the close of business on the 120th day prior to the
first anniversary of the preceding year's annual meeting; PROVIDED, HOWEVER,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 120th day prior to such annual meeting and not later than the
close of business on the later of the 90th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. 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 that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and Rule 14a 11 thereunder (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (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 and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (a)(2) of this Bylaw to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 100 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this Bylaw 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 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.
(b) SPECIAL MEETINGS OF STOCKHOLDERS. The business to be
transacted at any special meeting shall be limited to the purposes stated in the
notice of such meetings.
3
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 (1) by or at the direction of the Board of
Directors or (2) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Bylaw, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Bylaw. In the event the
Corporation calls a special meeting of stockholders for the purpose of electing
one or more directors to the Board of Directors, any such stockholder may
nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (a)(2) of this Bylaw shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 120th day prior to such special
meeting and 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 date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
(c) GENERAL. (1) Only such persons who are nominated in
accordance with the procedures set forth in this Bylaw shall be eligible to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Bylaw. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, the chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Bylaw and, if any
proposed nomination or business is not in compliance with this Bylaw, to declare
that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Bylaw, "public announcement" shall
mean disclosure in a press release reported by the Dow Xxxxx News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Bylaw, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Bylaw. Nothing in this Bylaw shall be deemed to affect any rights
(A) of stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a 8 under the Exchange Act or (B) of the holders of
any series of Preferred Stock to elect directors under specified circumstances.
SECTION 2.5 INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE
POLLS. The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of stockholders and
make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no inspector
or alternate has been
4
appointed to act or is able to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by law.
The chairman of the meeting shall fix and announce at the meeting the date and
time of the opening and the closing of the polls for each matter upon which the
stockholders will vote at the meeting.
SECTION 2.6 NO STOCKHOLDER ACTION BY WRITTEN CONSENT. Any
action required or permitted to be taken by stockholders may be effected only at
a duly called annual or special meeting of stockholders and may not be effected
by a written consent or consents by stockholders in lieu of such a meeting of
stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 GENERAL POWERS. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. In
addition to the powers and authorities by these Bylaws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these Bylaws required to be exercised or done by the
stockholders.
SECTION 3.2 NUMBER, TENURE AND QUALIFICATIONS. Subject to the
rights of the holders of any series of Preferred Stock to elect directors under
specified circumstances, the number of directors of the Corporation shall be
fixed, and may be increased or decreased from time to time, exclusively by
resolution approved by the affirmative vote of a majority of the Whole Board.
The directors, other than those who may be elected by the holders of any
outstanding series of Preferred Stock as set forth in the Certificate of
Incorporation, shall be divided into three classes, as nearly equal in number as
possible and designated Class I, Class II and Class III. Class I shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 2004, Class II shall be initially elected for a term expiring at the
annual meeting of stockholders to be held in 2005, and Class III shall be
initially elected for a term expiring at the annual meeting of stockholders to
be held in 2006. Members of each class shall hold office until their successors
are elected and qualified. At each succeeding annual meeting of the stockholders
of the Corporation, the successors of the class of directors whose term expires
at that meeting shall be elected for a term expiring at the annual meeting of
stockholders held in the third year following the year of their election. In
case of any increase or decrease, from time to time, in the number of directors,
other than those who may be elected by the holders of any outstanding series of
Preferred Stock as set forth in the Certificate of Incorporation, the number of
directors in each class shall be apportioned as nearly equal as possible.
SECTION 3.3 REGULAR MEETINGS. A regular meeting of the Board
of Directors may be held without other notice than this Bylaw immediately after,
and at the same place as, the
5
Annual Meeting of Stockholders. The Board of Directors may, by resolution,
provide the time and place for the holding of additional regular meetings
without other notice than such resolution.
SECTION 3.4 SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called at the request of the Chairman of the Board, the Chief
Executive Officer or a majority of the Board of Directors then in office. The
person or persons authorized to call special meetings of the Board of Directors
may fix the place and time of the meetings. Notice of any special meeting shall
be given to each director and shall state the time and place for the special
meeting.
SECTION 3.5 NOTICE. If notice of a Board of Directors' meeting
is required to be given, notice of shall be given to each director at his or her
business or residence in writing by hand delivery, first-class or overnight mail
or courier service, electronic transmission (including, without limitation, via
facsimile transmission or electronic mail), or orally by telephone. If mailed by
first-class mail, such notice shall be deemed adequately delivered when
deposited in the United States mails so addressed, with postage thereon prepaid,
no later than the third business day preceding the date of such meeting. If by
overnight mail or courier service, such notice shall be deemed adequately
delivered when the notice is delivered to the overnight mail or courier service
company at least twenty-four (24) hours before such meeting. If by electronic
transmission, such notice shall be deemed adequately delivered when the notice
is transmitted at least twelve (12) hours before such meeting. If by telephone
or by hand delivery, the notice shall be given at least twelve (12) hours prior
to the time set for the meeting. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these Bylaws,
as provided under Article IX of these Bylaws. A meeting may be held at any time
without notice if all the directors are present or if those not present waive
notice of the meeting in accordance with Article VIII of these Bylaws.
SECTION 3.6 QUORUM. Subject to Section 3.10 of these Bylaws, a
whole number of directors equal to at least a majority of the Whole Board shall
constitute a quorum for the transaction of business, but if at any meeting of
the Board of Directors there shall be less than a quorum present, a majority of
the directors present may adjourn the meeting from time to time without further
notice. The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors. The directors
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
SECTION 3.7 USE OF COMMUNICATIONS EQUIPMENT. Directors may
participate in a meeting of the Board of Directors or any committee thereof by
means of conference telephone or other 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 the meeting.
SECTION 3.8 ACTION BY CONSENT OF BOARD OF DIRECTORS. Any
action required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a meeting if all
members of the Board or committee, as the case may be,
6
consent thereto in writing or by electronic transmission, and the writing or
writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board or committee.
SECTION 3.9 REMOVAL. Subject to the rights of the holders of
any series of Preferred Stock with respect to such series of Preferred Stock,
any director, or the entire Board of Directors, may be removed from office at
any time, but only for cause and only by the affirmative vote of the holders of
a majority of the voting power of all of the then-outstanding shares of Voting
Stock, voting together as a single class.
SECTION 3.10 VACANCIES. Subject to applicable law and the
rights of the holders of any series of Preferred Stock with respect to such
series of Preferred Stock, and unless the Board of Directors otherwise
determines, vacancies resulting from death, resignation, retirement,
disqualification, removal from office or other cause, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled only by the affirmative vote of a majority of the remaining
directors, though less than a quorum of the Board of Directors, or by the sole
remaining director, and directors so chosen shall hold office for a term
expiring at the annual meeting of stockholders at which the term of office of
the class to which they have been elected expires and until such director's
successor shall have been duly elected and qualified. No decrease in the number
of authorized directors constituting the Whole Board shall shorten the term of
any incumbent director.
SECTION 3.11 COMMITTEES. The Board of Directors may, by
resolution adopted by a majority of the Whole Board, designate one or more
committees, each of which shall consist of one or more directors. 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 any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not constituting 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 committee shall, to the extent provided in a resolution of
the Board of Directors and subject to the limitations contained in the Delaware
General Corporation Law, 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. Each committee shall keep such records and report to the Board of
Directors in such manner as the Board of Directors may from time to time
determine. Except as the Board of Directors may otherwise determine, any
committee may make rules for the conduct of its business. Unless otherwise
provided in a resolution of the Board of Directors or in rules adopted by the
committee, each committee shall conduct its business as nearly as possible in
the same manner as provided in these Bylaws for the Board of Directors.
The Board of Directors shall have power at any time to fill
vacancies in, to change the membership of, or to dissolve any such committee.
The term of office of the members of each committee shall be as fixed from time
to time by the Board of Directors; PROVIDED, HOWEVER, that any committee member
who ceases to be a member of the Board of Directors shall automatically cease to
be a committee member.
7
Nothing herein shall be deemed to prevent the Board of
Directors from appointing one or more committees consisting in whole or in part
of persons who are not directors of the Corporation; PROVIDED, HOWEVER, that no
such committee shall have or may exercise any authority of the Board of
Directors.
ARTICLE IV
BOOKS AND RECORDS
SECTION 4.1 The Board of Directors shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board
and of the stockholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation. Unless otherwise required by the laws of Delaware, the books
and records of the Corporation may be kept at the principal office of the
Corporation, or at any other place or places inside or outside the State of
Delaware, as the Board of Directors from time to time may designate.
ARTICLE V
OFFICERS
SECTION 5.1 OFFICERS; ELECTION OR APPOINTMENT. The Board of
Directors shall take such action as may be necessary from time to time to ensure
that the Corporation has such officers as are necessary, under Section 6.1 of
these Bylaws and the Delaware General Corporation Law as currently in effect or
as the same may hereafter be amended, to enable it to sign stock certificates.
In addition, the Board of Directors at any time and from time to time may elect
(a) one or more Chairmen of the Board and/or one or more Vice Chairmen of the
Board from among its members, (b) one or more Chief Executive Officers, one or
more Presidents and/or one or more Chief Operating Officers, (c) one or more
Vice Presidents, one or more Treasurers and/or one or more Secretaries and/or
(d) one or more other officers, in each case if and to the extent the Board of
Directors deems desirable. The Board of Directors may give any officer such
further designations or alternate titles as it considers desirable. In addition,
the Board of Directors at any time and from time to time may authorize the
Chairman of the Board or the Chief Executive Officer of the Corporation to
appoint one or more officers of the kind described in clauses (c) and (d) above.
Any number of offices may be held by the same person and directors may hold any
office unless the Certificate of Incorporation or these Bylaws otherwise
provide.
SECTION 5.2 TERM OF OFFICE; RESIGNATION; REMOVAL; VACANCIES.
Unless otherwise provided in the resolution of the Board of Directors electing
or authorizing the appointment of any officer, each officer shall hold office
until his or her successor is elected or appointed and qualified or until his or
her earlier resignation or removal. Any officer may resign at any time upon
written notice to the Board of Directors or to such person or persons as the
Board of Directors may designate. Such resignation shall take effect at the time
specified therein, and unless otherwise specified therein no acceptance of such
resignation shall be necessary to make it effective. The Board of Directors may
remove any officer with or without cause at any time. The Chairman of the Board
or the Chief Executive Officer authorized by the Board of Directors to appoint a
person to hold an office of the Corporation may also remove such person from
such office with or without cause at any time, unless otherwise provided in the
8
resolution of the Board providing such authorization. Any such removal shall be
without prejudice to the contractual rights of such officer, if any, with the
Corporation, but the election or appointment of an officer shall not of itself
create contractual rights. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors at any regular or special meeting or by the Chairman of the
Board or the Chief Executive Officer authorized by the Board of Directors to
appoint a person to hold such office.
SECTION 5.3 POWERS AND DUTIES. The officers of the Corporation
shall have such powers and duties in the management of the Corporation as shall
be stated in these Bylaws or in a resolution of the Board of Directors which is
not inconsistent with these Bylaws and, to the extent not so stated, as
generally pertain to their respective offices, subject to the control of the
Board of Directors. A Secretary or such other officer appointed to do so by the
Board of Directors shall have the duty to record the proceedings of the meetings
of the stockholders, the Board of Directors and any committees in a book to be
kept for that purpose.
ARTICLE VI
STOCK CERTIFICATES
SECTION 6.1 STOCK CERTIFICATES. The Board of Directors may
authorize the issuance of stock either in certificated or in uncertificated
form. If shares are issued in uncertificated form, each stockholder shall be
entitled upon written request to a stock certificate or certificates duly
numbered, certifying the number and class of shares in the Corporation owned by
him and otherwise as specified in this Section 6.1. Each certificate for shares
of stock shall be in such form as may be prescribed by the Board of Directors
and shall be signed in the name of the Corporation by (a) the Chairman of the
Board, the Chief Executive Officer or a Vice President, and (b) by the Secretary
or an Assistant Secretary or the Treasurer or an Assistant Treasurer. Any or all
of the signatures on a certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue. Each certificate will include any
legends required by law or deemed necessary or advisable by the Board.
SECTION 6.2 LOST CERTIFICATES. No certificate for shares of
stock in the Corporation shall be issued in place of any certificate alleged to
have been lost, destroyed or stolen, except on production of such evidence of
such loss, destruction or theft and on delivery to the Corporation of a bond of
indemnity in such amount, upon such terms and secured by such surety, as the
Board of Directors or any financial officer of the Corporation may in its or his
or her discretion require.
SECTION 6.3 TRANSFERS OF STOCK. The shares of the stock of the
Corporation shall be transferable on the books of the Corporation by the holder
thereof in a person or by his or her attorney upon surrender for cancellation of
a certificate or certificates for at least the same number of shares, or other
evidence of ownership if no certificates shall have been issued, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, and
9
with such proof of the validity and authenticity of the signature as the
Corporation or its agents may reasonably require.
ARTICLE VII
DEPOSITARIES AND CHECKS
SECTION 7.1 Depositaries of the funds of the Corporation shall
be designated by the Board of Directors; and all checks on such funds shall be
signed by such officers or other employees of the Corporation as the Board of
Directors from time to time may designate.
ARTICLE VIII
WAIVER OF NOTICE
SECTION 8.1 Any notice of a meeting required to be given by
law, by the Certificate of Incorporation, or by these Bylaws may be waived by
the person entitled thereto, either before or after the time of such meeting
stated in such notice. Neither the business to be transacted at, nor the purpose
of, any annual or special meeting of the stockholders or the Board of Directors
or committee thereof need be specified in any waiver of notice of such meeting.
ARTICLE IX
AMENDMENT
SECTION 9.1 These Bylaws may be altered, amended, or repealed
at any meeting of the Board of Directors or of the stockholders, provided notice
of the proposed change was given in the notice of the meeting; PROVIDED,
HOWEVER, that, in the case of any alteration, amendment or repeal by the Board
of Directors, the affirmative vote of a majority of the Whole Board shall be
required to alter, amend or repeal any provision of these Bylaws; and PROVIDED
FURTHER, that, in the case of any alteration, amendment or repeal by the
stockholders of any of the provisions of Section 2.1(b), Section 2.6, Section
3.1, Section 3.2, Section 3.9 or Section 3.10 or this Article IX of these
Bylaws, the affirmative vote of the holders of not less than eighty percent
(80%) of the voting power of all of the then-outstanding shares of Voting Stock,
considered for purposes of this Article IX as a single class, shall be required
to alter, amend or repeal any such provision.
ARTICLE X
INDEMNIFICATION AND INSURANCE
SECTION 10.1 RIGHT TO INDEMNIFICATION. Each person who was or
is made a party or is threatened to be made a party to or is involved in any
action, suit, claim or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans maintained or sponsored by the
Corporation, whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the
10
Corporation to the fullest extent authorized by the Delaware General Corporation
Law as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid or to be paid in settlement) reasonably incurred or suffered by
such person in connection therewith and such indemnification shall continue as
to a person who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of his or her heirs, executors and administrators;
PROVIDED, HOWEVER, that except as provided in Section 10.4 of this Article X,
the Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only if
such proceeding (or part thereof) was authorized by the Board of Directors.
SECTION 10.2 ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in this Article X shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition, such advances
to be paid by the Corporation within 20 days after receipt by the Corporation of
a written statement or statements from the claimant requesting such advance or
advances; PROVIDED, HOWEVER, that if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article X or
otherwise.
SECTION 10.3 OBTAINING INDEMNIFICATION. To obtain
indemnification under this Article X, a claimant shall submit to the Corporation
a written request, including therein or therewith such documentation and
information as is reasonably available to the claimant and is reasonably
necessary to determine whether and to what extent the claimant is entitled to
indemnification. Upon written request by a claimant for indemnification pursuant
to the first sentence of this Section 10.3, a determination, if required by
applicable law, with respect to the claimant's entitlement thereto shall be made
as follows: (1) if requested by the claimant, by Independent Counsel (as
hereinafter defined), or (2) if no request is made by the claimant for a
determination by Independent Counsel, (i) by the Board of Directors by a
majority vote of a quorum consisting of Disinterested Directors (as hereinafter
defined), or (ii) if a quorum of the Board of Directors consisting of
Disinterested Directors is not obtainable or, even if obtainable, such quorum of
Disinterested Directors so directs, by Independent Counsel in a written opinion
to the Board of Directors, a copy of which shall be delivered to the claimant,
or (iii) if a quorum of Disinterested Directors so directs, by the stockholders
of the Corporation. In the event the determination of entitlement to
indemnification is to be made by Independent Counsel at the request of the
claimant, the Independent Counsel shall be selected by the Board of Directors
unless there shall have occurred within two years prior to the date of the
commencement of the action, suit or proceeding for which indemnification is
claimed a Change in Control (as defined below), in which case the Independent
Counsel shall be selected by the claimant unless the claimant shall request that
such selection be made by the Board of Directors. If it is so
11
determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 30 days after such determination. If a claimant is
successful, in whole or in part, in any suit brought against the Corporation to
recover the unpaid amount of any written claim to indemnification, the claimant
shall be entitled to be paid also the expense of prosecuting such claim.
SECTION 10.4 RIGHT OF CLAIMANT TO BRING SUIT. If a claim under
Section 10.1 of this Article X is not paid in full by the Corporation within
thirty days after a written claim pursuant to Section 10.3 of this Article X has
been received by the Corporation, the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
claimant has not met the standard of conduct which makes it permissible under
the Delaware General Corporation Law for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, Independent Counsel or stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
SECTION 10.5 CORPORATION'S OBLIGATION TO INDEMNIFY. If a
determination shall have been made pursuant to Section 10.3 of this Article X
that the claimant is entitled to indemnification, the Corporation shall be bound
by such determination in any judicial proceeding commenced pursuant to Section
10.4 of this Article X.
SECTION 10.6 PRECLUSION FROM CHALLENGING ARTICLE X. The
Corporation shall be precluded from asserting in any judicial proceeding
commenced pursuant to Section 10.4 of this Article X that the procedures and
presumptions of this Article X are not valid, binding and enforceable and shall
stipulate in such proceeding that the Corporation is bound by all the provisions
of this Article X.
For purposes of this Article X:
(a) "Change in Control" shall be deemed to occur only if a
majority of the members of the Board of Directors shall not be (i) individuals
elected as directors of the Corporation for whose election proxies shall have
been solicited by the Board of Directors of the Corporation or (ii) individuals
elected or appointed by the Board of Directors of the Corporation to fill
vacancies on the Board of Directors caused by death or resignation (but not by
removal) or to fill newly created directorships.
12
(b) "Disinterested Director" means a director of the
Corporation who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(c) "Independent Counsel" means a law firm, a member of a law
firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable standards
of professional conduct then prevailing, would not have a conflict of interest
in representing either the Corporation or the claimant in an action to determine
the claimant's rights under this Article X.
SECTION 10.7 NON-EXCLUSIVITY OF RIGHTS. The right to
indemnification and the payment of expenses incurred in defending a proceeding
in advance of its final disposition conferred in this Article X shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or otherwise. No repeal or modification of this
Article X shall in any way diminish or adversely affect the rights of any
director, officer, employee or agent of the Corporation hereunder in respect of
any occurrence or matter arising prior to any such repeal or modification.
SECTION 10.8 INSURANCE. The Corporation may maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the Delaware General Corporation Law. To the
extent that the Corporation maintains any policy or policies providing such
insurance, each such director or officer, and each such agent or employee to
which rights to indemnification have been granted as provided in Section 10.9 of
this Article X, shall be covered by such policy or policies in accordance with
its or their terms to the maximum extent of the coverage thereunder for any such
director, officer, employee or agent.
SECTION 10.9 OTHER EMPLOYEES AND AGENTS. The Corporation may,
to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and rights to be paid by the Corporation the expenses
incurred in defending any proceeding in advance of its final disposition, to any
employee or agent or class of employees or agents of the Corporation (including
the heirs, executors, administrators or estate of each such person) to the
fullest extent of the provisions of this Article X with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
SECTION 10.10 VALIDITY OF ARTICLE X. If any provision or
provisions of this Article X 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 X (including, without
limitation, each portion of any paragraph of this Article X containing any such
provision held to be invalid, illegal or unenforceable, that is not itself held
to be 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 X (including, without limitation, each such portion of any paragraph of
this Article X containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
13
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 FISCAL YEAR. The fiscal year of the Corporation
shall begin on the first day of January and end on the thirty-first day of
December of each year.
SECTION 11.2 DIVIDENDS. The Board of Directors may from time
to time declare, and the Corporation may pay, dividends on its outstanding
shares in the manner and upon the terms and conditions provided by law and the
Certificate of Incorporation.
14