By-Laws - CAIS Internet Inc.
AMENDED AND RESTATED BY-LAWS
OF
CAIS INTERNET, INC.
ARTICLE I
OFFICES
Section 1.01. Registered Office. The address of the Corporation's
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registered office in the State of Delaware is 15 East North Street, Dover, Kent
County, Delaware 19901. The Corporation's registered agent at such address is
HIQ Corporate Services, Inc.
Section 1.02. Other Offices. The Corporation may also have other
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offices located in or outside of the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 2.01. Time and Place of Meetings. All meetings of the
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stockholders shall be held at such time and place, within or without the State
of Delaware as the Board of Directors may from time to time determine or as may
be designated in the notice of meeting or waiver of notice thereof, subject to
any provisions of the laws of the State of Delaware.
Section 2.02. Annual Meetings. Annual meetings of stockholders shall
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be held at such date and time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting, at which meeting,
the stockholders shall vote for the election of directors and shall transact
such other business as may properly be brought before the meeting.
Section 2.03. Notice of Annual Meetings. Written notice of the
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annual meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting. When a meeting is adjourned to another
place, date or time, written notice need not be given of the adjourned meeting
if the place, date and time thereof are announced at the meeting at which the
adjournment is taken; provided, however, that if the date of any adjourned
meeting is more than thirty (30) days after the date for which the meeting was
originally noticed, or if a new record date is fixed for the adjourned meeting,
written notice of the place, date and time of the adjourned meeting, shall be
given in conformity herewith.
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At any adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 2.04. Special Meetings. Special meetings of the
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stockholders, for any purpose or purposes, unless otherwise prescribed by the
General Corporation Law of the State of Delaware or by the Certificate of
Incorporation, may be called at any time only by the Board of Directors of the
Corporation pursuant to a resolution adopted by the affirmative vote of the
majority of the total number of Directors then in office or by the Chief
Executive Officer of the Corporation.
Section 2.05. Notice of Special Meetings. Written notice of a
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special meeting stating the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting, to each
stockholder entitled to vote at such meeting. When a meeting is adjourned to
another place, date or time, written notice need not be given of the adjourned
meeting if the place, date and time thereof are announced at the meeting at
which the adjournment is taken; provided, however, that if the date of any
adjourned meeting is more than thirty (30) days after the date for which the
meeting was originally noticed, or if a new record date is fixed for the
adjourned meeting, written notice of the place, date and time of the adjourned
meeting, shall be given in conformity herewith. At any adjourned meeting, any
business may be transacted which might have been transacted at the original
meeting.
Section 2.06. Notice of Stockholder Business; Nominations.
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(a) Annual Meeting of Stockholders.
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(1) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders shall be made at
an annual meeting of stockholders (A) pursuant to the Corporation's notice of
such meeting, (B) by or at the direction of the Board of Directors, or (C) by
any stockholder of the Corporation who is a stockholder of record at the time of
giving of the notice provided for in this Section 2.06 and who complies with the
notice procedures set forth in this Section 2.06.
(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 Section 2.06, 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 must be delivered to the principal executive offices of the
Corporation no later than the close of business on the sixtieth (60th) day nor
earlier than the close of business on the ninetieth (90th) 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 thirty (30)
days before or more than sixty (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 ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to such
annual meeting or the close of business on the tenth (10th) day following the
day on which public announcement of the date of such meeting is first made by
the Corporation. Such stockholder's
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notice shall set forth (A) as to each person whom the stockholder proposes to
nominate for election or re-election as a director, all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), 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
(1) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner; and (2) the class and number
of shares of the Corporation that are owned beneficially and held of record by
such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (a)
(2) of this Section 2.06 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 seventy (70) days prior to the first anniversary of the
preceding year's annual meeting (or, if the annual meeting is held more than
thirty (30) days before or sixty (60) days after such anniversary date, at least
seventy (70) days prior to such annual meeting), a stockholder's notice required
by this Section 2.06 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 office of the Corporation
not later than the close of business on the tenth (10th) day following the day
on which such public announcement is first made by the Corporation.
(b) Special Meetings of Stockholders. Only such business shall be
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conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of such meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of such meeting (A) by or at the direction of the Board of
Directors or (B) 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 of the special
meeting, who shall be entitled to vote at such meeting and who complies with the
notice procedures set forth in this Section 2.06. If 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) or (a) (3) of this Section 2.06 shall be delivered to the
Secretary at the principal executive offices of the Corporation within the
notice periods set forth therein, as applicable.
(c) General.
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(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 2.06 shall be eligible to serve as
directors and only such business shall be conducted at such meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 2.06. Except as otherwise provided by
law, the Certificate of Incorporation or these By-Laws, 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 Section 2.06
and, if any proposed nomination or business is not in compliance herewith, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 2.06, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the forgoing provisions of this Section 2.06, 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 herein. Nothing in this Section 2.06 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.
(d) Amendment. Subject to Section 8.12 of these By-Laws, the
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provisions of this Section 2.06 are subject to alteration, amendment or repeal,
and new or conflicting provisions may be adopted by the affirmative vote of the
holders of not less than 66 2/3% of the voting power of all outstanding shares
of common stock of the Corporation.
Section 2.07. Organization. Such person as the Board of Directors
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may have designated or, such person as may be chosen by the holders of a
majority of the shares entitled to vote who are present, in person or by proxy,
shall call to order any meeting of the stockholders and act as chairman of the
meeting. In the absence of the Secretary of the Corporation, the secretary of
the meeting shall be such person as the chairman of the meeting appoints.
Section 2.08. Quorum. The holders of a majority of the stock issued
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and outstanding and entitled to vote, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by the General Corporation
Law of the State of Delaware or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time to another place, date or time. If a notice of any adjourned special
meeting of stockholders is sent to all stockholders entitled to vote thereat,
stating that it will be held with those present constituting a quorum, then
except as otherwise required by the General Corporation Law of the State of
Delaware, those present at such adjourned meeting shall constitute a quorum, and
all matters shall be determined by a majority of the votes cast at such meeting.
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Section 2.09. Voting. At any meeting of the stockholders, every
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stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing filed in accordance with the procedure established for the
meeting. Each stockholder shall have one (1) vote for every share of stock
entitled to vote which is registered in his or her name on the record date for
the meeting, except as otherwise provided herein or required by the General
Corporation Law of the State of Delaware. All voting, including on the election
of directors but excepting where otherwise required by the General Corporation
Law of the State of Delaware, may be by a voice vote.
Section 2.10. Proxies. Any stockholder entitled to vote at any
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meeting of the stockholders or to express consent to or dissent from corporate
action without a meeting may, by a written instrument signed by such stockholder
or his attorney-in-fact, authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy
shall be revocable at the pleasure of the stockholder executing it, except in
those cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing another duly executed proxy bearing a later date with the
Secretary. A duly executed proxy shall be irrevocable if it states that it is
irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power.
Section 2.11. Stock List. A complete list of stockholders entitled
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to vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in his or her name, shall be open to the examination of any
such stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified, or at the place where the meeting is to be held. The stock
list shall also be kept at the place of the meeting during the whole time
thereof and shall be open to the examination of any such stockholder who is
present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
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ARTICLE III
BOARD OF DIRECTORS
Section 3.01. General Powers. Except as may otherwise be provided by
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law, by the Certificate of Incorporation or by these By-Laws, the property,
affairs and business of the Corporation shall be managed by or under the
direction of the Board of Directors and the Board of Directors may exercise all
the powers of the Corporation.
Section 3.02. Number and Term of Office. The number of directors
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constituting the entire Board of Directors shall be six, which number, subject
to compliance with any applicable stockholder approval requirements set forth in
the Certificate of Incorporation or in any agreement among the stockholders of
the Corporation, may be modified from time to time by resolution of the Board of
Directors, but in no event shall the number of directors be less than one.
Effective upon the closing of the first sale of the Corporation's common stock
pursuant to a firmly underwritten registered public offering (the "IPO"), the
directors shall be divided into three (3) classes: Class I, Class II and Class
III. Membership in each such class shall be as nearly equal in number as
possible. The term of office of the initial Class I Directors shall expire at
the annual election of Directors by the stockholders of the Corporation in 2000;
the term of office of the initial Class II Directors shall expire at the annual
election of Directors by the stockholders of the Corporation in 2001; and the
term of office of the initial Class III Directors shall expire at the annual
election of Directors by the stockholders of the Corporation in 2002; or in each
case thereafter when their respective successors in each case are elected by the
stockholders and qualified, subject, however, to prior death, resignation,
retirement, disqualification or removal from office for cause. At each
succeeding annual election of Directors by the stockholders of the Corporation
beginning in 2000, the Directors chosen to succeed those whose terms then expire
shall be identified as being of the same class as the Directors they succeed and
shall be elected for a term expiring at the third succeeding annual election of
Directors by the stockholders of the Corporation, or thereafter when their
respective successors in each case are elected by the stockholders and
qualified. If the number of Directors is changed, any increase or decrease
shall be apportioned among the classes so as to maintain the number of Directors
in each class as nearly equal as possible, and any additional Director of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case shall a decrease in the number of Directors shorten the
term of any incumbent Director.
Section 3.03. Annual or Regular Meetings; Notice. The annual meeting
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of the Board of Directors for the purpose of electing officers and for the
transaction of such other business as may come before the meeting shall be held
as soon as possible following adjournment of the annual meeting of the
stockholders at the place of such annual meeting of the stockholders. Notice of
such annual meeting of the Board of Directors need not be given. The Board of
Directors from time to time may by resolution provide for the holding of regular
meetings and fix the place (which may be within or without the State of
Delaware), date and hour of such meetings. Notice of regular meetings need not
be given, provided, however, that if the Board of Directors shall fix or change
the time or place of any regular meeting, notice of such action shall be mailed
promptly, or sent by telegram, radio or cable, to each director who shall not
have been present at the meeting at which such action
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was taken, addressed to him at his usual place of business, or shall be
delivered to him personally. Notice of such action need not be given to any
director who attends the first regular meeting after such action is taken
without protesting the lack of notice to him, prior to or at the commencement of
such meeting, or to any director who submits a signed waiver of notice, whether
before or after such meeting.
Section 3.04. Special Meetings; Notice. Special meetings of the
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Board of Directors shall be held whenever called by the Chief Executive Officer
or, in the event of his absence or disability, by any Vice President or by the
Secretary at such place (within or without the State of Delaware), date and hour
as may be specified in the respective notices or waivers of notice of such
meetings. Special meetings of the Board of Directors may be called on 24 hours'
notice, if notice is given to each director personally or by telephone or
telegram, or on five days' notice, if notice is mailed to each director,
addressed to him at his usual place of business. Notice of any special meeting
need not be given to any director who attends such meeting without protesting
the lack of notice to him, prior to or at the commencement of such meeting, or
to any director who submits a signed waiver of notice, whether before or after
such meeting, and any business may be transacted thereat.
Section 3.05. Quorum; Voting. At all meetings of the Board of
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Directors, a majority of the directors then in office shall constitute a quorum
for transaction of business, and the vote of a majority of the directors present
at any meeting at which there is a quorum shall be the act of the Board of
Directors, except as may be otherwise specifically provided by the General
Corporation Law of the State of Delaware or by the Certificate of Incorporation.
If a quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 3.06. Adjournment. A majority of the directors present,
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whether or not a quorum is present, may adjourn any meeting of the Board of
Directors to another time or place. No notice need be given of any adjourned
meeting unless the time and place of the adjourned meeting is not announced at
the time of adjournment, in which case notice conforming to the requirements of
Section 2.05 shall be given to each director.
Section 3.07. Action Without a Meeting. Unless otherwise restricted
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by the Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board of
Directors or of such committee consent hereto in writing, and such writing or
writings are filed with the minutes of proceedings of the Board of Directors or
such committee.
Section 3.08. Regulations; Manner of Acting. To the extent
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consistent with applicable law, the Certificate of Incorporation and these By-
Laws, the Board of Directors may adopt such rules and regulations for the
conduct of meetings of the Board of Directors and for the management of the
property, affairs and business of the Corporation as the Board of Directors may
deem appropriate. The directors shall act only as a Board, and the individual
directors shall have no power as such.
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Section 3.09. Participation in Meetings by Conference Telephone.
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Members of the Board of Directors or of any committee thereof may participate in
a meeting of the Board of Directors or a committee thereof by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this provision shall constitute presence in person at such
meeting.
Section 3.10. Removal and Resignation. No director may be removed
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from office without cause and without the affirmative vote of the holders of a
majority of the voting power of the then outstanding shares of capital stock of
the Corporation entitled to vote generally in the election of directors voting
together as a single class; provided, however, that if the holders of any class
or series of capital stock are entitled to elect one or more directors, such
director or directors so elected may be removed without case only by the vote of
the holders of a majority of the outstanding shares of that class or series
entitled to vote. Any director may resign at any time upon written notice to
the Corporation.
Section 3.11. Vacancies and Newly Created Directorships. Subject to
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any rights of holders of any series of Preferred Stock to fill such newly
created directorships or vacancies any newly created directorships resulting
from any increase in the authorized number of directors and any vacancies in the
Board of Directors resulting form death, resignation, disqualification or
removal from office for cause shall, unless otherwise provided by law or by
resolution approved by the affirmative vote of a majority of the total number of
directors then in office, be filled only by resolution approved by the
affirmative vote of a majority of the total number of directors then in office.
Any director so chosen shall hold office until the next election of the class
for which such director shall have been chosen, and until his successor shall
have been duly elected and qualified, unless he shall resign, die, become
disqualified or be removed for cause.
Section 3.12. Compensation. The amount, if any, which each director
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shall be entitled to receive as compensation for his services as such shall be
fixed from time to time by resolution of the Board of Directors.
Section 3.13. Reliance on Accounts and Reports, etc. A director, or
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a member of any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
records of the Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of the Corporation's officers or
employees, or committees designated by the Board of Directors, or by any other
person as to the matters the member reasonably believes are within such other
person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
ARTICLE IV
COMMITTEES
Section 4.01. Generally. The Board of Directors shall designate an
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Audit Committee and a Compensation Committee, and may designate one or more
other committees, each committee to consist of one or more of the directors of
the Corporation. Any such committee shall
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have and may exercise all the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation, and may authorize
the seal of the Corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to amending
the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution, or amending the By-Laws of the Corporation;
and unless the resolution or By-Laws expressly so provide, no such committee
shall have the power or authority to declare a dividend or to authorize the
issuance of stock.
Section 4.02. Committee Procedure. Each committee may determine the
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procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings; one-
third of the members shall constitute a quorum unless the committee shall
consist of one (1) or two (2) members, in which event one member shall
constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if
all members thereof consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of such committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member.
Section 4.03. Executive Committee. The Board of Directors may, in
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its discretion by resolution passed by a majority of the Board of Directors,
designate an Executive Committee consisting of such number of directors as the
Board of Directors shall determine. The Executive Committee shall have and may
exercise all of the authority of the Board of Directors in the management of the
Corporation with respect to any matter that may require action prior to, or that
in the opinion of the Executive Committee may be inconvenient, inappropriate or
undesirable to be postponed until, the next meeting of the Board of Directors;
provided, however, that the Executive Committee shall not have the power or
authority of the Board of Directors in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or an amendment
to these By-Laws. Any member of the Board of Directors may request the chairman
of the Executive Committee to call a meeting of the Executive Committee with
respect to a specified subject.
Section 4.04. Audit Committee. The Audit Committee will review the
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results and scope of the audit and other services, provided by the Corporation's
independent accountants.
Section 4.05. Compensation Committee. The Compensation Committee
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will approve salaries and certain incentive compensation for management and key
employees of the Corporation, and administer the Corporation's stock option and
other employee benefit plans.
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ARTICLE V
OFFICERS
Section 5.01 Number and Designation. The officers of the Corporation
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shall be a Chief Executive Officer, a President, a Chief Operating Officer, a
Secretary, a Vice Chairman and such other officers (e.g., one or more Vice
Presidents, a Treasurer and one or more Assistant Secretaries or Assistant
Treasurers) as the Board of Directors from time to time considers necessary for
the proper conduct of the business of the Corporation. Any two or more offices
may be held by the same person. Vacancies may be filled or new offices created
and filled at any meeting of the Board of Directors. Each officer shall hold
office until his or her successor shall have been duly elected and shall have
qualified or until his or her earlier death, resignation, or removal.
Section 5.02. Chief Executive Officer. The Chief Executive Officer
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shall be the president of the Corporation and shall, in general, supervise and
control all of the business and affairs of the Corporation and perform all
duties incident to the offices of Chief Executive Officer and president and such
other duties as from time to time may be prescribed by the Board of Directors,
subject, however, to the control of the Board of Directors. When present, he
shall preside at all meetings of the stockholders and of the Board of Directors.
The Chief Executive Officer may sign, alone or with the Secretary or any other
proper officer of the Corporation thereunto authorized by the Board of
Directors, any deeds, mortgages, bonds, contracts, or other instruments that the
Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof shall be expressly delegated by the Board of
Directors or by these By-Laws to some other officer or agent of the Corporation,
or shall be required by law to be otherwise signed or executed.
Section 5.03. Secretary. The Secretary shall (a) keep the minutes of
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the stockholders' and of the Board of Directors' meetings and committees of the
Board of Directors in one or more books provided for that purpose; (b) see that
all notices are duly given in accordance with the provisions of these By-Laws or
as required by law; (c) be custodian of the corporate records; (d) keep a
register of the post office address of each stockholder, director or committee
member, which shall be furnished to the Secretary by such stockholder, director
or member; (e) have general charge of the stock transfer books of the
Corporation; and (f) in general perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Chief Executive Officer or the Board of Directors.
Section 5.04. President. The President shall assist the Chief
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Executive Officer to supervise and control all of the business and affairs of
the Corporation and perform all duties incident to the office of President and
such other duties as from time to time may be prescribed by the Chief Executive
Officer or the Board of Directors. In the absence or disability of the Chief
Executive Officer, the President may, unless otherwise determined by the Board
of Directors, exercise the powers and perform the duties pertaining to the
office of the Chief Executive Officer.
Section 5.05 Chief Operating Officer. The Chief Operating Officer
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shall assist the President to supervise and control all of the business and
affairs of the Corporation and perform all duties incident to the office of
Chief Operating Officer and such other duties as may from time to
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time be prescribed by the President. In the absence or disability of the
President, the Chief Operating Officer may, unless otherwise determined by the
Board of Directors, exercise and perform the duties of the President.
Section 5.06. Vice President. The Vice President or Vice Presidents
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shall perform such duties as may be assigned to them from time to time by the
Board of Directors or by the Chief Executive Officer, if the Board of Directors
does not do so. In the absence or disability of the Vice Chairman, the
Executive Vice Presidents in order of seniority, or if none, the Senior Vice
Presidents, in order of seniority, or if none, the Vice Presidents in order of
seniority, may, unless otherwise determined by the Board of Directors, exercise
the powers and perform the duties pertaining to the office of the Vice Chairman,
except that if one or more Vice Presidents has been elected or appointed, the
person holding such office in order of seniority shall exercise the powers and
perform the duties of the office of the Vice Chairman.
Section 5.07. Treasurer. The Treasurer, or such other officer of the
---------
Corporation as may be named by the Board of Directors or appointed by the Chief
Executive Officer of the Corporation to perform such function, shall have charge
and custody of and be responsible for all funds and securities of the
Corporation, receive and give receipts for moneys due and payable to the
Corporation from any source whatsoever, deposit all such moneys in the name of
the Corporation in such banks, trust companies or other depositories, disburse
the funds of the Corporation as ordered by the Board of Directors or the Chief
Executive Officer of the Corporation or as otherwise required in the conduct of
the business of the Corporation, and render to the Chief Executive Officer of
the Corporation or the Board of Directors, upon request, an account of all his
transactions as Treasurer and on the financial condition of the Corporation.
The Treasurer, unless another officer of the Corporation is named by the Board
of Directors to perform such functions, shall have the duties and
responsibilities and shall exercise the authority and powers of the chief
financial officer of the Corporation, and shall in general perform all the
duties incident to the office of Treasurer and such other duties as from time to
time may be assigned to him by the Chief Executive Officer or by the Board of
Directors. If required by the Board of Directors, the Treasurer shall give a
bond (which shall be renewed regularly), in such sum and with such surety or
sureties as the Board of Directors shall determine for the faithful discharge of
his duties and for the restoration to the Corporation, in case of his death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in his possession or under his control
belonging to the Corporation.
Section 5.08. Assistant Treasurers and Assistant Secretaries.
----------------------------------------------
Assistant Treasurers and Assistant Secretaries shall perform such duties as
shall be assigned to them by the Treasurer or by the Secretary, respectively, or
by the Board of Directors or the Chief Executive Officer. If required by the
Board of Directors, the Assistant Treasurers shall give bonds (which shall be
renewed regularly) for the faithful discharge of their duties in such sums and
with such sureties as the Board of Directors shall determine.
Section 5.09. Compensation. The salaries of the officers shall be
------------
fixed from time to time by the Board of Directors or such officer as the Board
of Directors shall designate for such
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purpose or as it shall otherwise direct. No officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
Section 5.10. Removal and Resignation; Vacancies. Any officer may be
----------------------------------
removed with or without cause at any time by the Board of Directors. Any
officer may resign at any time by delivering a written notice of resignation,
signed by such officer, to the Board of Directors or the Chief Executive
Officer. Unless otherwise specified therein, such resignation shall take effect
upon delivery. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise, shall be filled by the Board of Directors.
Section 5.11. Authority and Duties of Officers. The officers of the
--------------------------------
Corporation shall have such authority and shall exercise such powers and perform
such duties as may be specified by the Board of Directors, except that in any
event each officer shall exercise such powers and perform such duties as may be
required by law. In the event an officer other than the Chief Executive
Officer, the Secretary and the Vice Chairman is not elected by the Board of
Directors, the Board of Directors or the Chief Executive Officer may bestow and
delegate that officer's duties and powers on any other officer of the
Corporation.
Section 5.12. Failure to Elect. A failure to elect officers shall
----------------
not dissolve or otherwise affect the Corporation.
ARTICLE VI
CAPITAL STOCK
Section 6.01. Certificates. Each stockholder shall be entitled to a
------------
certificate signed by, or in the name of the Corporation by the Chief Executive
Officer, the Vice Chairman or a Vice President, and by the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the
number of shares owned by him or her. Any or all of the signatures on the
certificate may be facsimile.
Section 6.02. Uncertificated Shares. Subject to any conditions
---------------------
imposed by the General Corporation Law of the State of Delaware or by the
Certificate of Incorporation, the Board of Directors may provide by resolution
or resolutions that some or all of any or all classes or series of the stock of
the Corporation shall be uncertificated shares. Within a reasonable time after
the issuance or transfer of any uncertificated shares, the Corporation shall
send to the registered owner thereof any written notice prescribed by the
General Corporation Law.
Section 6.03. Lost, Stolen or Destroyed Certificates. The Board of
--------------------------------------
Directors may direct that a new certificate be issued in place of any
certificate theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon delivery to the Board of Directors of an affidavit of
the owner or owners of such certificate, setting forth such allegation. The
Board of Directors may require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond
sufficient to indemnify it against any claim that may be made against it on
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account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate.
Section 6.04. Stock Transfers. The Board of Directors shall have the
---------------
power and authority to make all such rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates of
stock. The Board of Directors may appoint transfer agents and registrars
thereof.
Section 6.05. Record Date. The Board of Directors may fix in advance
-----------
a date as a record date for the determination of the stockholders entitled to
notice of or to vote at any meeting of stockholders or to express consent (or
dissent) to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action. Such record date shall not be more than sixty (60) nor
less than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed. The record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 6.06. Registered Stockholders. Prior to due surrender of a
-----------------------
certificate for registration of transfer, the Corporation may treat the
registered owner as the person exclusively entitled to receive dividends and
other distributions, to vote, to receive notice and otherwise to exercise all
the rights and powers of the owner of the shares represented by such
certificate, and the Corporation shall not be bound to recognize any equitable
or legal claim to or interest in such shares on the part of any other person,
whether or not the Corporation shall have notice of such claim or interests.
Whenever any transfer of shares shall be made for collateral security, and not
absolutely, it shall be so expressed in the entry of the transfer if, when the
certificates are presented to the Corporation for transfer or uncertificated
shares are requested to be transferred, both the transferor and transferee
request the Corporation to do so.
ARTICLE VII
INDEMNIFICATION
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Section 7.01. Nature of Indemnity. The Corporation shall indemnify
-------------------
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of fact that the person is
or was or has agreed to become a director or officer of the Corporation, or is
or was serving or has agreed to serve at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been taken or
omitted in such capacity, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that the person is or was or has agreed to become an employee or
agent of the Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with such action,
suit or proceeding and any appeal therefrom, if the 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 person's conduct was unlawful;
except that in the case of an action or suit by or in the right of the
Corporation to procure a judgment in its favor (1) such indemnification shall be
limited to expenses (including attorneys' fees) actually and reasonably incurred
by such person in the defense or settlement of such action or suit, and (2) 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 Delaware 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 Delaware Court of Chancery or such other court shall deem
proper.
The termination of any action, suit or proceeding by judgment, order
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
---- ----------
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which he 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 person's conduct was
unlawful.
Section 7.02. Successful Defense. To the extent 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 referred to in Section
7.01 hereof or in defense of any claim, issue or matter therein, the person
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection therewith.
Section 7.03. Determination That Indemnification Is Proper. Any
--------------------------------------------
indemnification of a director or officer of the Corporation under Section 7.01
hereof (unless ordered by a court) shall be made by the Corporation unless a
determination is made that indemnification of the director or officer is not
proper in the circumstances because the person has not met the applicable
standard of conduct set forth in Section 7.01 hereof. Any indemnification of an
employee or agent of the Corporation under Section 7.01 hereof (unless ordered
by a court) may be made by the Corporation upon a determination that
indemnification of the employee or agent is proper in the circumstances
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because the person has met the applicable standard of conduct set forth in
Section 7.01 hereof. Any such determination shall be made (1) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding; or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion; or (3) by the
stockholders.
Section 7.04. Advance Payment of Expenses. Expenses incurred by a
---------------------------
director or officer in defending any civil, criminal, administrative or
investigative action, suit or proceeding shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director or officer to repay such
amount if it shall ultimately be determined that the person is not entitled to
be indemnified by the Corporation as authorized in this Article. Such expenses
(including attorneys' fees) incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may authorize the Corporation's counsel to
represent such director, officer, employee or agent in any action, suit or
proceeding, whether or not the Corporation is a party to such action, suit or
proceeding.
Section 7.05. Procedure for Indemnification of Directors and
----------------------------------------------
Officers. Any indemnification of a director or officer of the Corporation under
Sections 7.01 and 7.02, or advance of costs, charges and expenses to a director
or officer under Section 7.04 of this Article, shall be made promptly, and in
any event within thirty (30) days, upon the written request of the director or
officer. If a determination by the Corporation that the director or officer is
entitled to indemnification pursuant to this Article is required, and the
Corporation fails to respond within sixty (60) days to a written request for
indemnity, the Corporation shall be deemed to have approved such request. If
the Corporation denies a written request for indemnity or advancement of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within thirty (30) days, the right to indemnification or advances as
granted by this Article shall be enforceable by the director or officer in any
court of competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his right to indemnification, in whole
or in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of costs, charges and expenses under Section 7.04 of this
Article where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct set forth in
Section 7.01 of this Article, but the burden of proving such defense shall be on
the Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel, and its 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 has met the applicable
standard of conduct set forth in Section 7.01 of this Article, nor the fact that
there has been an actual determination by the Corporation (including its Board
of Directors, its independent legal counsel, and its 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 7.06. Survival; Preservation of Other Rights. The foregoing
--------------------------------------
indemnification provisions shall be deemed to be a contract between the
Corporation and each director, officer, employee and agent who serves in any
such capacity at any time while these provisions as well as
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the relevant provisions of the Delaware General Corporation Law are in effect
and any repeal or modification thereof shall not affect any right or obligation
then existing with respect to any state of facts then or previously existing or
any action, suit or proceeding previously or thereafter or brought or threatened
based in whole or in part upon any such state of facts. Such a "contract right"
may not be modified retroactively without the consent of such director, officer,
employee or agent.
The indemnification provided by this Article VII shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in the person's official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 7.07. Insurance. The Corporation shall purchase and maintain
---------
insurance on behalf of any person who is or was or has agreed to become a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director or officer or another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
the person and incurred by the person or on the person's behalf in any such
capacity, or arising out of the person's status as such, whether or not the
Corporation would have the power to indemnify the person against such liability
under the provisions of this Article, provided that such insurance is available
on acceptable terms, which determination shall be made by a vote of a majority
of the entire Board of Directors.
Section 7.08. Severability. If this Article or any portion hereof
------------
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify each director or officer and may
indemnify each employee or agent of the Corporation as to costs, charges and
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative, including an action by or in the
right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated and to the fullest
extent permitted by applicable law.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01. Dividends. Subject to any applicable provisions of law
---------
and the Certificate of Incorporation, dividends upon the shares of the
Corporation may be declared by the Board of Directors at any regular or special
meeting of the Board of Directors and any such dividend may be paid in cash,
property, or shares of the Corporation's capital stock.
A member of the Board of Directors, or a member of any committee
designated by the Board of Directors shall be fully protected in relying in good
faith upon the records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors, or by any other person
16
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as to matters the director reasonably believes are within such other person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Corporation, as to the value and amount of the assets,
liabilities and/or net profits of the Corporation, or any other facts pertinent
to the existence and amount of surplus or other funds from which dividends might
properly be declared and paid.
Section 8.02. Reserves. There may be set aside out of any funds of
--------
the Corporation available for dividends such sum or sums as the Board of
Directors 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 of Directors shall think conducive to the interest of the
Corporation, and the Board of Directors may similarly modify or abolish any such
reserve.
Section 8.03. Execution of Instruments. The Chief Executive Officer,
------------------------
the Vice Chairman, any Vice President, the Secretary or the Treasurer may enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. The Board of Directors or the Chief Executive
Officer may authorize any other officer or agent to enter into any contract or
execute and deliver any instrument in the name and on behalf of the Corporation.
Any such authorization may be general or limited to specific contracts or
instruments.
Section 8.04. Corporate Indebtedness. No loan shall be contracted on
----------------------
behalf of the Corporation, and no evidence of indebtedness shall be issued in
its name, unless authorized by the Board of Directors or the Chief Executive
Officer. Such authorization may be general or confined to specific instances.
Loans so authorized may be effected at any time for the Corporation from any
bank, trust company or other institution, or from any firm, corporation or
individual. All bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation issued for such loans shall be made, executed
and delivered as the Board of Directors or the Chief Executive Officer shall
authorize. When so authorized by the Board of Directors or the Chief Executive
Officer, any part of or all the properties, including contract rights, assets,
business or good will of the Corporation, whether then owned or thereafter
acquired, may be mortgaged, pledged, hypothecated or conveyed or assigned in
trust as security for the payment of such bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation, and of the interest
thereon, by instruments executed and delivered in the name of the Corporation.
Section 8.05. Deposits. Any funds of the Corporation may be
--------
deposited from time to time in such banks, trust companies or other depositories
as may be determined by the Board of Directors or the Chief Executive Officer,
or by such officers or agents as may be authorized by the Board of Directors or
the Chief Executive Officer to make such determination.
Section 8.06. Checks. All checks or demands for money and notes of
------
the Corporation shall be signed by such officer or officers or such agent or
agents of the Corporation, and in such manner, as the Board of Directors or the
Chief Executive Officer from time to time may determine.
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Section 8.07. Sale, Transfer, etc. of Securities. To the extent
----------------------------------
authorized by the Board of Directors or by the Chief Executive Officer, the Vice
Chairman, the Secretary or any other officers designated by the Board of
Directors or the Chief Executive Officer, the Corporation may sell, transfer,
endorse, and assign any shares of stock, bonds or other securities owned by or
held in the name of the Corporation, and may make, execute and deliver in the
name of the Corporation, under its corporate seal, any instruments that may be
appropriate to effect any such sale, transfer, endorsement or assignment.
Section 8.08. Voting as Stockholder. Unless otherwise determined by
---------------------
resolution of the Board of Directors, the Chief Executive Officer, the Vice
Chairman or any Vice President or Secretary shall have full power and authority
on behalf of the Corporation to attend any meeting of stockholders of any
corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
Section 8.09. Fiscal Year. The fiscal year of the Corporation shall
-----------
commence on the first day of January of each year (except for the Corporation's
first fiscal year, which shall commence on the date of incorporation) and shall
terminate in each case on December 31.
Section 8.10. Seal. The Board of Directors may adopt a corporate seal
----
and use the same by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
Section 8.11. Books and Records; Inspection. The Corporation shall
-----------------------------
keep correct and complete books and records of its accounts and transactions and
minutes of the proceedings of its stockholders and Board of Directors. The books
of the Corporation may be kept (subject to any provisions contained in the
General Corporation Law of the State of Delaware) outside the State of Delaware
at such place or places as may be designated from time to time by the Board of
Directors.
Section 8.12. Amendments. These By-Laws, or any of them, may be
----------
altered, amended or repealed, or new By-Laws may be made, at any meeting of the
Board of Directors, by vote of a majority of the Board of Directors, provided
that the proposed action in respect thereof shall be stated in the notice of
waiver of notice of such meeting or that all of the directors of the Corporation
shall be present at such meeting.
I hereby certify that the foregoing Amended and Restated By-Laws were
duly adopted by the Board of Directors of the Corporation on February 19, 1999.
/s/ Michael G. Plantamura
--------------------------
Michael G. Plantamura, Secretary
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