By-Laws - Getty Images Inc.
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BY-LAWS
OF
GETTY IMAGES, INC.
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TABLE OF CONTENTS
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ARTICLE I
OFFICES
SECTION 1.01. Registered Office . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.02. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.03. Notice of Meetings. . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.04. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.05. Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.06. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.07. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.08. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.09. Organization. . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.10. Advance Notice of Business to Be Transacted at Annual
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.11. No Action Without Meeting . . . . . . . . . . . . . . . . . . 5
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. General Powers. . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.02. Number and Term of Office . . . . . . . . . . . . . . . . . . 5
SECTION 3.03. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.04. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.05. Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.06. Action by Consent . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.07. Action by Means of Telephone or Similar Communications
Equipment. . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.08. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . 7
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ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.01. Committees. . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE V
OFFICERS
SECTION 5.01. Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.02. Authority and Duties. . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.03. Term of Office, Resignation and Removal . . . . . . . . . . . 9
SECTION 5.04. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.05. A Chairman. . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.06. The Chief Executive Officer . . . . . . . . . . . . . . . . . 10
SECTION 5.07. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5.08. The Secretary . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5.09. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.10. The Treasurer . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.11. Assistant Treasurers. . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.12. Additional Officers . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.13. Removal of Certain Officers . . . . . . . . . . . . . . . . . 11
ARTICLE VI
CHECKS, DRAFTS, NOTES AND PROXIES
SECTION 6.01. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.02. Checks, Drafts and Notes. . . . . . . . . . . . . . . . . . . 12
SECTION 6.03. Execution of Proxies. . . . . . . . . . . . . . . . . . . . . 12
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ARTICLE VII
SHARES AND TRANSFERS OF SHARES
SECTION 7.01. Certificates of Stock . . . . . . . . . . . . . . . . . . . . 12
SECTION 7.02. Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 7.03. Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 7.04. Addresses of Stockholders . . . . . . . . . . . . . . . . . . 13
SECTION 7.05. Lost, Destroyed or Mutilated Certificates . . . . . . . . . . 13
SECTION 7.06. Facsimile Signatures. . . . . . . . . . . . . . . . . . . . . 13
SECTION 7.07. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 7.08. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 7.09. Registered Stockholders . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII
BOOKS AND RECORDS
SECTION 8.01. Books and Records . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IX
SEAL
SECTION 9.01. Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE X
FISCAL YEAR
SECTION 10.01. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XI
INDEMNIFICATION
SECTION 11.01. Indemnification. . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XII
AMENDMENTS
SECTION 12.01. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . 18
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BY-LAWS
OF
GETTY IMAGES, INC.
ARTICLE I
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of Getty
Images, Inc. (the "CORPORATION") in the State of Delaware shall be The
Corporation Trust Company, 1209 Orange Street, in the City of Wilmington, County
of New Castle, and the registered agent in charge thereof shall be The
Corporation Trust Company.
SECTION 1.02. OTHER OFFICES. The Corporation may also have an office
or offices at any other place or places within or without the State of Delaware
as the Board of Directors of the Corporation (the "BOARD") may from time to time
determine or the business of the Corporation may from time to time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. ANNUAL MEETINGS. The annual meeting of stockholders of
the Corporation for the election of directors of the Corporation ("DIRECTORS"),
and for the transaction of such other business as may properly come before such
meeting, shall be held at such place, date and time as shall be fixed by the
Board and designated in the notice or waiver of notice of such annual meeting.
SECTION 2.02. SPECIAL MEETINGS. Special meetings of stockholders for
any purpose or purposes may be called as set forth in the Amended and Restated
Certificate of Incorporation of the Corporation or in any amendment thereto (the
"CERTIFICATE OF INCORPORATION"). Unless otherwise prescribed by statute or by
the Certificate of Incorporation, special meetings may not be called by any
other person or persons.
SECTION 2.03. NOTICE OF MEETINGS. (a) Except as otherwise provided
by law, written notice of each annual or special meeting of stockholders stating
the place, date and time of such meeting and, in the case of a special meeting,
the purpose or purposes for which such meeting is to be held and by whom the
meeting is being called, shall be given personally or by first-class mail
(airmail in the case of international communications) to each holder of
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common stock, par value $0.01 per share ("COMMON STOCK"), of the Corporation
entitled to vote thereat, not less than 10 nor more than 60 days before the date
of such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder's address as it appears on the records of the
Corporation. If, prior to the time of mailing, the Secretary of the Corporation
(the "SECRETARY") shall have received from any stockholder a written request
that notices intended for such stockholder are to be mailed to some address
other than the address that appears on the records of the Corporation, notices
intended for such stockholder shall be mailed to the address designated in such
request.
Notice of a special meeting of stockholders may be given by the person
or persons calling the meeting, or, upon the written request of such person or
persons, such notice shall be given by the Secretary on behalf of such person or
persons. If the person or persons calling a special meeting of stockholders
give notice thereof, such person or persons shall deliver a copy of such notice
to the Secretary. Each request to the Secretary for the giving of notice of a
special meeting of stockholders shall state the purpose or purposes of such
meeting.
SECTION 2.04. WAIVER OF NOTICE. Notice of any annual or special
meeting of stockholders need not be given to any stockholder entitled to vote at
such meeting who files a written waiver of notice with the Secretary, duly
executed by the person entitled to notice, whether before or after such meeting.
Neither the business to be transacted at, nor the purpose of, any meeting of
stockholders need be specified in any written waiver of notice thereof.
Attendance of a stockholder at a meeting, in person or by proxy, shall
constitute a waiver of notice of such meeting, except as provided by law.
SECTION 2.05. ADJOURNMENTS. Whenever a meeting of stockholders,
annual or special, is adjourned to another date, time or place, notice need not
be given of the adjourned meeting if the date, time and place thereof are
announced at the meeting at which the adjournment is taken. If the adjournment
is for more than 30 calendar days, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder entitled to vote at the adjourned meeting. At the
adjourned meeting, any business may be transacted which might have been
transacted at the original meeting.
When any meeting is convened, the presiding officer, if directed by
the Board, may adjourn the meeting if (a) no quorum is present for the
transaction of business, or (b) the Board determines that adjournment is
necessary or appropriate to enable the stockholders (i) to consider fully
information which the Board determines has not been made sufficiently or timely
available to stockholders or (ii) otherwise to exercise effectively their voting
rights.
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SECTION 2.06. QUORUM. Except as otherwise provided by law or the
Certificate of Incorporation, whenever a class of stock of the Corporation is
entitled to vote as a separate class, or whenever classes of stock of the
Corporation are entitled to vote together as a single class, on any matter
brought before any meeting of the stockholders, whether annual or special,
holders of shares entitled to cast a majority of the votes entitled to be
cast by all the holders of the shares of stock of such class voting as a
separate class, or classes voting together as a single class, as the case may
be, outstanding and entitled to vote thereat, present in person or by proxy,
shall constitute a quorum for the transaction of business at all meetings of
stockholders, whether annual or special. If, however, such quorum shall not
be present in person or by proxy at any meeting of stockholders, the
stockholders entitled to vote thereat may adjourn the meeting from time to
time in accordance with Section 2.05 hereof until a quorum shall be present
in person or by proxy.
SECTION 2.07. VOTING. Unless otherwise provided in the Certificate
of Incorporation, each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of capital stock entitled to
vote thereat held by such stockholder. Except as otherwise provided by law or
the Certificate of Incorporation or these Bylaws, when a quorum is present with
respect to any matter brought before any meeting of the stockholders, the vote
of the holders of stock casting a majority of the votes entitled to be cast by
all the holders of the stock constituting such quorum shall decide any such
matter. Votes need not be by written ballot, unless the Board, in its
discretion, requires any vote or votes cast at such meeting to be cast by
written ballot.
SECTION 2.08. PROXIES. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such
stockholder by proxy. Such proxy shall be filed with the Secretary before such
meeting of stockholders at such time as the Board may require. No proxy shall
be voted or acted upon more than three years from its date, unless the proxy
provides for a longer period.
SECTION 2.09. ORGANIZATION. Meetings of stockholders of the
Corporation shall be presided over by a Chairman of the Board ("CHAIRMAN") in
accordance with Section 5.05 of Article V, or in the absence of a Chairman, by
the Chief Executive Officer of the Corporation (the "CHIEF EXECUTIVE OFFICER"),
or in the absence of the Chief Executive Officer by a director chosen by a
majority of the directors present at such meeting. The Secretary or, in the
absence of the Secretary, an Assistant Secretary of the Corporation ("ASSISTANT
SECRETARY"), shall act as secretary of the meeting, but in the absence of the
Secretary and any Assistant Secretary, the chairman of the meeting may appoint
any person to act as secretary of the meeting.
SECTION 2.10. ADVANCE NOTICE OF BUSINESS TO BE TRANSACTED AT ANNUAL
MEETINGS. (a) To be properly brought before the annual meeting of
stockholders, business must be (i) specified in the notice of meeting (or any
supplement thereto) given by or
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at the direction of the Board (or any duly authorized committee thereof),
(ii) otherwise properly brought before the meeting by or at the direction of
the Board (or any duly authorized committee thereof), or (iii) otherwise
properly brought before the meeting by any stockholder of the Corporation (A)
who is a stockholder of record on the date of the giving of the notice
provided for in this Section 2.10 and on the record date for the
determination of stockholders entitled to vote at such meeting and (B) who
complies with the notice procedure set forth in this Section 2.10. In
addition to any other applicable requirements, including but not limited to
the requirements of Rule 14a-8 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), for business to be properly brought before an annual meeting
by a stockholder pursuant to clause (iii) of this Section 2.10(a), such
stockholder must have given timely notice thereof in proper written form to
the Secretary.
(b) To be timely, a stockholder's notice to the Secretary pursuant to
clause (iii) of Section 2.10(a) must be delivered to or mailed and received at
the principal executive offices of the Corporation, not less than 60 days nor
more than 90 days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; PROVIDED, HOWEVER, that in the event that the
annual meeting is called for a date that is not within 30 days before or after
such anniversary date, notice by the stockholder in order to be timely must be
so received not later than the close of business on the tenth day following the
day on which such notice of the date of the annual meeting is mailed or such
public disclosure of the date of the annual meeting is made, whichever first
occurs.
(c) To be in proper written form, a stockholder's notice to the
Secretary pursuant to clause (iii) of Section 2.10(a) must set forth as to each
matter such stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
such stockholder, together with evidence reasonably satisfactory to the
Secretary of such beneficial ownership, (iv) a description of all arrangements
or understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder and any material interest of such stockholder in such business, and
(v) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting.
(d) Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at the annual meeting of stockholders except
business brought before such meeting in accordance with the procedures set forth
in this Section 2.10; PROVIDED, HOWEVER, that, once business has been properly
brought before such meeting in accordance with such procedures, nothing in this
Section 2.10 shall be deemed to preclude discussion by any stockholder of any
such business. If the chairman of such meeting determines that business
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was not properly brought before the meeting in accordance with the foregoing
procedures, the chairman shall declare to the meeting that the business was
not properly brought before the meeting and such business shall not be
transacted.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. GENERAL POWERS. The property, business and affairs of
the Corporation shall be managed by, or under the direction of, the Board, which
may exercise all such powers of the Corporation and do all such lawful acts and
things that are not conferred upon or reserved to the stockholders by law, the
Certificate of Incorporation or these Bylaws.
SECTION 3.02. NUMBER, CLASSES AND TERM OF OFFICE. Unless otherwise
provided in the Certificate of Incorporation, the Board shall consist of ten
(10) directors, or any number of directors as the Board may fix by the vote
of a majority of the entire Board. The directors shall be divided into three
classes, designated Class I (initially four directors), Class II (initially
three directors) and Class III (initially three directors). Except as
otherwise provided in the Certificate of Incorporation, the term of the
initial Class I directors shall terminate on the date of the 1998 annual
meeting of stockholders; the term of the initial Class II directors shall
terminate on the date of the 1999 annual meeting of stockholders; and the
term of the initial Class III directors shall terminate on the date of the
2000 annual meeting of stockholders. At each annual meeting of stockholders,
beginning with the 1998 annual meeting of stockholders, successors to the
class of directors whose term expires at that annual meeting shall be elected
for a three-year term by a plurality of the votes. 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, but in no case will a decrease in the number of directors
shorten the term of any incumbent director. A director shall hold office
until the annual meeting for the year in which his term expires and until his
successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. The
term of a director elected by stockholders to fill a newly created
directorship or other vacancy shall expire at the same time as the terms of
the other directors of the class for which the new directorship is created or
in which the vacancy occurred. Any vacancy on the Board that results from an
increase in the number of directors and any other vacancy occurring on the
Board, howsoever resulting, may be filled only by a majority of the directors
then in office, even if less than a quorum, or by a sole remaining director.
Any director so elected by the Board to fill a vacancy shall hold office for
a term that shall coincide with the term of the class to which such director
shall have been elected. Directors need not be stockholders of the
Corporation.
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SECTION 3.03. RESIGNATION. Any director may resign at any time by
giving written notice to the Board, a Chairman or the Secretary. Any such
resignation shall take effect at the time specified in such notice or, if the
time when it shall become effective shall not be specified therein, acceptance
of such resignation shall not be necessary to make it effective.
SECTION 3.04. REMOVAL. Subject to the provisions of the
Certificate of Incorporation and the DGCL, any or all of the directors may be
removed only for due cause by vote of the record holders of a majority of the
holders of stock entitled to vote thereon at a meeting of the stockholders;
PROVIDED, HOWEVER, that no such removal can be made at such meeting unless
the notice thereof specifies such removal and the reasons thereof as one of
the matters that shall be considered at such meeting.
SECTION 3.05. MEETINGS. (a) ANNUAL MEETINGS. As soon as
practicable after each annual election of directors, the Board shall meet for
the purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to
Section 3.06 hereof.
(b) OTHER MEETINGS. Other meetings of the Board shall be held as the
Board shall from time to time determine or upon call by any of a Chairman, the
Chief Executive Officer, a majority of the entire Board or stockholders having
15% or more of the total voting power of all outstanding securities of the
Corporation then entitled to vote generally in the election of directors, voting
together as a single class.
(c) NOTICE OF MEETINGS. Regular meetings of the Board may be held
without notice. The Secretary shall give written notice to each director of
each special meeting of such meeting. Notice of each such meeting shall be
given to each director, either by mail, at least two days before the day on
which such meeting is to be held, or by telecopy, telegraph, cable, or other
form of recorded communication, or be delivered personally or by telephone 48
hours prior to such meeting is to be held. A written waiver of notice, signed
by the director entitled to notice, whether before or after the time of the
meeting referred to in such waiver, shall be deemed equivalent to notice.
Attendance of a director at a meeting of the Board shall constitute a waiver of
notice of such meeting, except as provided by law.
(d) PLACE OF MEETINGS. The Board may hold its meetings at such place
or places within or without the State of Delaware as the Board may from time to
time, by resolution, determine, or as shall be designated in the respective
notices or waivers of notice of such meetings.
(e) QUORUM AND MANNER OF ACTING. Except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws, a majority of the total
number of directors
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then in office shall be necessary at any meeting of the Board in order to
constitute a quorum for the transaction of business at such meeting, and the
affirmative vote of a majority of those directors present at any such meeting
at which a quorum is present shall be necessary for the passage of any
resolution or act of the Board. In the absence of a quorum for any such
meeting, a majority of the directors present thereat may adjourn such meeting
from time to time until a quorum shall be present. Notice of any adjourned
meeting need not be given.
(f) MINUTES OF MEETINGS. The Secretary or, in the case of his
absence, any person (who shall be an Assistant Secretary, if an Assistant
Secretary is present) whom the chairman of the meeting shall appoint shall act
as secretary of such meeting and keep the minutes thereof.
SECTION 3.06. ACTION BY CONSENT. Any action required or permitted to
be taken at any meeting of the Board or of any committee thereof may be taken
without a meeting if a written consent or consents thereto is signed by all the
members of the Board or such committee, as the case may be, and such written
consent or consents are filed with the minutes of the proceedings of the Board
or such committee.
SECTION 3.07. ACTION BY MEANS OF TELEPHONE OR SIMILAR COMMUNICATIONS
EQUIPMENT. Any one or more members of the Board, or of any committee thereof,
may participate in a meeting of the Board or such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting by such means shall constitute presence in person at such meeting.
SECTION 3.08. COMPENSATION. Each director, in consideration of his
serving as such, shall be entitled to receive from the Corporation such amount
per annum, if any, or such fees, if any, for attendance at meetings of the Board
or of any committee thereof, or both, as the Board shall from time to time
determine. The Board may likewise provide that the Corporation shall reimburse
each director or member of a committee for any expenses incurred by him on
account of his attendance at any such meeting. Nothing contained in this
Section 3.08 shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.01. COMMITTEES. (a) The Board, by resolution passed by a
majority of the number of directors constituting the entire Board, may designate
members of the Board to constitute one or more committees which shall in each
case consist of such
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number of directors, not fewer than two, and, to the extent permitted by law
and provided in the resolution establishing such committee, shall have and
exercise all the powers and authority of the Board in the management of the
business and affairs of the Corporation. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent
or disqualified members at any meeting of any such committee. In the absence
or disqualification of a member of a committee, and in the absence of a
designation by the Board of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and
not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any absent or disqualified member. A
majority of all the members of any such committee may fix its rules of
procedure, determine its action and fix the time and place, whether within or
without the state of Delaware, of its meetings and specify what notice
thereof, if any, shall be given, unless the Board shall otherwise by
resolution provide. The Board, upon approval of a majority of the number of
directors constituting the entire Board, shall have power to change the
members of any such committee at any time, to fill vacancies therein and to
discharge any such committee, either with or without cause, at any time.
Each committee shall keep regular minutes and report to the Board when
required.
(b) The Board shall establish, pursuant to the provisions of this
paragraph (b), an Executive Committee, an Audit Committee and a Compensation
Committee. The Executive Committee shall have all the powers and authority
of the Board in the management of the business and affairs of the Corporation
that may be properly delegated by the Board to a committee of the Board. The
Audit Committee and the Compensation Committee shall have all the powers and
authority which may be properly delegated to such committees by the Board.
ARTICLE V
OFFICERS
SECTION 5.01. OFFICERS. The officers of the Corporation shall be one
or more Chairman, the Chief Executive Officer, the Secretary and a Treasurer and
may include one or more Vice Presidents and one or more Assistant Secretaries
and one or more Assistant Treasurers. Any two or more offices may be held by
the same person.
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SECTION 5.02. AUTHORITY AND DUTIES. All officers shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these Bylaws or, to the extent not so provided, by resolution of the
Board.
SECTION 5.03. TERM OF OFFICE, RESIGNATION AND REMOVAL. (a) Each
officer shall be appointed by the Board and shall hold office for such term as
may be determined by the Board; PROVIDED, HOWEVER, that a Chairman shall be
appointed by a majority of the number of directors constituting the entire
Board. Each officer shall hold office until his successor has been appointed
and qualified or his earlier death or resignation or removal in the manner
hereinafter provided. The Board may require any officer to give security for
the faithful performance of his duties.
(b) Any officer may resign at any time by giving written notice to
the Board, a Chairman or the Secretary. Such resignation shall take effect at
the time specified in such notice or, if the time be not specified, upon receipt
thereof by the Board, a Chairman or the Secretary, as the case may be. Unless
otherwise specified therein, acceptance of such resignation shall not be
necessary to make it effective.
(c) All officers and agents appointed by the Board shall be subject
to removal, with or without cause, at any time by the Board.
SECTION 5.04. VACANCIES. Any vacancy occurring in any office of the
Corporation, for any reason, shall be filled by action of the Board. Unless
earlier removed pursuant to Section 5.03 hereof, any officer appointed by the
Board to fill any such vacancy shall serve only until such time as the unexpired
term of his predecessor expires unless reappointed by the Board.
SECTION 5.05. OFFICE OF THE CHAIRMAN. (a) A Chairman shall have
general and active management and control of the business and affairs of the
Corporation, subject to the control of the Board, and shall see that all orders
and resolutions of the Board are carried into effect. A Chairman shall perform
all duties incident to the office of a Chairman of the Board and all such other
duties as may from time to time be assigned to a Chairman by the Board or these
Bylaws. The Board may in its sole discretion appoint two persons to be
Co-Chairman of the Corporation and each such Co-Chairman will have the same
powers and authority as if each Co-Chairman served as the sole Chairman of the
Corporation.
(b) A Chairman will have the power to call special meetings of
stockholders and to call special meetings of the Board. A Chairman will preside
over the meetings of the Board and the meetings of the stockholders. If there
are Co-Chairmen of the Corporation, the Co-Chairmen will preside over the
meetings of the Board and the meetings of the stockholders on a rotational basis
such that at each subsequent meeting of the Board
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and each subsequent meeting of the stockholders, the Co-Chairman who did not
preside at the most recent meeting of the Board, in the case of meetings of
the Board, or the most recent meeting of stockholders, in the case of
meetings of the stockholders, shall preside if present. If a Chairman is not
present at a meeting of the Board or at a meeting of the stockholders, the
Chief Executive Officer shall preside, and if the Chief Executive Officer is
not present at such meeting, a director chosen by a majority of the directors
present shall preside over the meeting.
SECTION 5.06. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall be the chief executive officer of the Corporation and shall exercise
supervision over the business of the Corporation and over its several officers,
subject, however, to the oversight of a Chairman. The Chief Executive Officer
shall perform all duties incident to the office of Chief Executive Officer and
all such other duties as may from time to time be assigned to him by the Board
or these Bylaws.
SECTION 5.07. VICE PRESIDENTS. Vice Presidents, if any, shall
generally assist the Chief Executive Officer and perform such other duties as
the Board or the Chief Executive Officer shall prescribe, and in the absence or
disability of the Chief Executive Officer, shall perform the duties and exercise
the powers of the Chief Executive Officer, in such order as may be determined by
the Board.
SECTION 5.08. THE SECRETARY. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of stockholders
and shall record all votes and the minutes of all proceedings in a book to be
kept for that purpose, and shall perform the same duties for any committee of
the Board when so requested by such committee. He shall give or cause to be
given notice of all meetings of stockholders and of the Board, shall perform
such other duties as may be prescribed by the Board, a Chairman or the Chief
Executive Officer and shall act under the supervision of the Chief Executive
Officer. He shall keep in safe custody the seal of the Corporation and affix
the same to any instrument that requires that the seal be affixed to it and
which shall have been duly authorized for signature in the name of the
Corporation and, when so affixed, the seal shall be attested by his signature or
by the signature of the Treasurer of the Corporation or an Assistant Secretary
or Assistant Treasurer of the Corporation. He shall keep in safe custody the
certificate books and stockholder records and such other books and records of
the Corporation as the Board, a Chairman or the Chief Executive Officer may
direct and shall perform all other duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him by the Board,
a Chairman or the Chief Executive Officer.
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SECTION 5.09. ASSISTANT SECRETARIES. Assistant Secretaries, if any,
in order of their seniority or in any other order determined by the Board, shall
generally assist the Secretary and perform such other duties as the Board or the
Secretary shall prescribe, and, in the absence or disability of the Secretary,
shall perform the duties and exercise the powers of the Secretary.
SECTION 5.10. THE TREASURER. The Treasurer shall be the chief
financial officer of the Corporation, shall exercise supervision over all of
the financial affairs of the Corporation, shall have the care and custody of
all the funds of the Corporation and shall deposit such funds in such banks
or other depositories as the Board, or any officer or officers, or any
officer and agent jointly, duly authorized by the Board, shall, from time to
time, direct or approve. He shall disburse the funds of the Corporation
under the direction of the Board, a Chairman and the Chief Executive Officer.
He shall keep a full and accurate account of all moneys received and paid on
account of the Corporation and shall render a statement of his accounts
whenever the Board, a Chairman or the Chief Executive Officer shall so
request. He shall perform all other necessary actions and duties in
connection with the administration of the financial affairs of the
Corporation and shall generally perform all the duties usually appertaining
to the office of treasurer of a corporation. When required by the Board, he
shall give bonds for the faithful discharge of his duties in such sums and
with such sureties as the Board shall approve.
SECTION 5.11. ASSISTANT TREASURERS. Assistant Treasurers of the
Corporation, if any, in order of their seniority or in any other order
determined by the Board, shall generally assist the Treasurer and perform such
other duties as the Board or the Treasurer shall prescribe, and, in the absence
or disability of the Treasurer, shall perform the duties and exercise the powers
of the Treasurer.
SECTION 5.12. ADDITIONAL OFFICERS. The Board may appoint such other
officers and assistant officers and agents as it shall deem necessary, who shall
hold their offices for such terms and shall have authority and exercise such
powers and perform such duties as shall be determined from time to time by the
Board, by resolution not inconsistent with these Bylaws, a Chairman or by the
Chief Executive Officer.
SECTION 5.13. REMOVAL OF CERTAIN OFFICERS. Neither a Chairman nor
the Chief Executive Officer may be removed from office unless such removal shall
have first been approved by two-thirds of the number of directors constituting
the entire Board.
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ARTICLE VI
CHECKS, DRAFTS, NOTES AND PROXIES
SECTION 6.01. DIVIDENDS. Dividends shall be declared only out of any
assets or funds of the Corporation legally available for the payment of
dividends at such times as the Board shall direct. Dividends shall be paid to
holders of the stock of the Corporation in U.S. dollars.
SECTION 6.02. CHECKS, DRAFTS AND NOTES. All checks, drafts and other
orders for the payment of money, notes and other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as shall be
determined, from time to time, by resolution of the Board.
SECTION 6.03. EXECUTION OF PROXIES. A Chairman or the Chief
Executive Officer, or, in the absence or disability of all of them, any Vice
President, may authorize, from time to time, the execution and issuance of
proxies to vote shares of stock or other securities of other corporations
held of record by the Corporation and the execution of consents to action
taken or to be taken by any such corporation. All such proxies and consents,
unless otherwise authorized by the Board, shall be signed in the name of the
Corporation by a Chairman, the Chief Executive Officer or any Vice President.
ARTICLE VII
SHARES AND TRANSFERS OF SHARES
SECTION 7.01. CERTIFICATES OF STOCK. Every owner of shares of stock
of the Corporation shall be entitled to have a certificate evidencing the number
of shares of stock of the Corporation owned by him or it and designating the
class of stock to which such shares belong, which shall otherwise be in such
form as the Board shall prescribe. Each such certificate shall bear the
signature (or a facsimile thereof) of a Chairman, the Chief Executive Officer or
any Vice President and of the Treasurer or any Assistant Treasurer or the
Secretary or any Assistant Secretary of the Corporation.
SECTION 7.02. RECORD. A record shall be kept of the name of the
person, firm or corporation owning the stock represented by each certificate
evidencing stock of the Corporation issued, the number of shares represented
by each such certificate, and the date thereof, and, in the case of
cancellation, the date of cancellation. Except as otherwise
<PAGE>
expressly required by law, the person in whose name shares of stock stand on
the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
SECTION 7.03. TRANSFER OF STOCK. (a) The transfer of shares of
stock and the certificates evidencing such shares of stock of the Corporation
shall be governed by Article 8 of Subtitle I of Title 6 of the Delaware Code,
as amended from time to time.
(b) Registration of transfers of shares of stock of the Corporation
shall be made only on the books of the Corporation upon request of the
registered holder thereof, or of his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary, and upon the surrender of
the certificate or certificates evidencing such shares properly endorsed or
accompanied by a stock power duly executed.
SECTION 7.04. ADDRESSES OF STOCKHOLDERS. Each stockholder shall
designate to the Secretary an address at which notices of meetings and all other
corporate notices may be served or mailed to him, and, if any stockholder shall
fail to so designate such an address, corporate notices may be served upon him
by mail directed to him at his post office address, if any, as the same appears
on the share record books of the Corporation or at his last known post office
address.
SECTION 7.05. LOST, DESTROYED OR MUTILATED CERTIFICATES. A holder of
any shares of stock of the Corporation shall promptly notify the Corporation of
any loss, destruction or mutilation of any certificate or certificates
evidencing all or any such shares of stock. The Board may, in its discretion,
cause the Corporation to issue a new certificate in place of any certificate
theretofore issued by it and alleged to have been mutilated, lost, stolen or
destroyed, upon the surrender of the mutilated certificate or, in the case of
loss, theft or destruction of the certificate, upon satisfactory proof of such
loss, theft or destruction, and the Board may, in its discretion, require the
owner of the lost, stolen or destroyed certificate or his legal representative
to give the Corporation a bond sufficient to indemnify the Corporation against
any claim made against it on account of the alleged loss, theft or destruction
of any such certificate or the issuance of such new certificate.
SECTION 7.06. FACSIMILE SIGNATURES. Any or all of the signatures on
a certificate evidencing shares of stock of the Corporation may be facsimiles.
SECTION 7.07. REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation or these Bylaws, concerning the issue, transfer and registration
of certificates evidencing stock of the Corporation. It may appoint, or
authorize any principal officer or officers to appoint, one or more transfer
agents and one or more registrars, and may require all certificates of
<PAGE>
stock to bear the signature or signatures (or a facsimile or facsimiles
thereof) of any of them. The Board may at any time terminate the employment
of any transfer agent of any registrar of transfers. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall cease to be such officer, transfer agent
or registrar, whether because of death, resignation, removal or otherwise,
before such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though that person or persons
who signed or whose facsimile signature has been placed upon such certificate
or certificates had not ceased to be such officer, transfer agent or
registrar.
SECTION 7.08. RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of, or to vote at, any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board may fix, in advance, a
record date, which shall not be more than 60 nor less than 10 days before the
date of such meeting, nor more than 60 days prior to any other such action. A
determination of stockholders entitled to notice of, or to vote at, any meeting
of stockholders shall apply to any adjournment of the meeting; PROVIDED,
HOWEVER, that the Board may fix a new record date for the adjourned meeting.
SECTION 7.09. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of stock to receive dividends and to vote as such owner,
shall be entitled to hold liable for calls and assessments a person registered
on its records as the owner of shares of stock, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares of
stock on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by the laws of the State of
Delaware.
ARTICLE VIII
BOOKS AND RECORDS
SECTION 8.01. BOOKS AND RECORDS. The books and records of the
Corporation may be kept at such place or places within or without the State of
Delaware as the Board may from time to time determine.
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ARTICLE IX
SEAL
SECTION 9.01. SEAL. The Board may approve and adopt a suitable
corporate seal, which shall bear the full name of the Corporation.
ARTICLE X
FISCAL YEAR
SECTION 10.01. FISCAL YEAR. The fiscal year of the Corporation shall
end on the thirty-first day of December of each year unless changed by
resolution of the Board.
ARTICLE XI
INDEMNIFICATION
SECTION 11.01. INDEMNIFICATION. (a) GENERAL. 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 (other than an action by or in
the right of the Corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, to
the full extent authorized or permitted by law, as now or hereafter in effect,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner 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 no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement or conviction, or upon
a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a
presumption that the person seeking indemnification 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 his conduct was unlawful.
<PAGE>
(b) DERIVATIVE ACTIONS. 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 or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, to the full extent authorized or permitted by law, as now or
hereafter in effect, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; PROVIDED, HOWEVER, that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) SUCCESSFUL DEFENSE. To the extent that a present or former
director or officer of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) above, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection therewith.
(d) PROCEEDINGS INITIATED BY ANY PERSON. Notwithstanding anything to
the contrary contained in subsections (a) or (b) above, except for proceedings
to enforce rights to indemnification, the Corporation shall not be obligated to
indemnify any person in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized in
advance, or unanimously consented to, by the Board.
(e) PROCEDURE. Any indemnification under subsections (a) and (b)
above, (unless ordered by a court), shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
present or former director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
subsections (a) and (b) above. Such determination shall be made, with respect
to a person who is a director or officer at the time of such determination, (i)
by a majority vote of a quorum of the directors who are not parties to such
action, suit or proceeding, or (ii) by a committee of such directors designated
by majority vote of such directors, even though less than a quorum, or (iii) if
there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion, or (iv) by the stockholders of the
Corporation.
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(f) ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by a director or an 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 in form and substance satisfactory to
the Corporation by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation pursuant to this Article XI or as otherwise
authorized by law. Such expenses (including attorneys' fees) incurred by former
directors and officers, other employees and agents may be so paid upon such
terms and conditions, if any, as the Corporation deems appropriate.
(g) RIGHTS NOT EXCLUSIVE. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article XI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
law, bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office.
(h) INSURANCE. The Corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of the DGCL.
(i) DEFINITION OF "CORPORATION". For purposes of this Article XI,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article XI with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if its
separate existence had continued.
<PAGE>
(j) CERTAIN OTHER DEFINITIONS. For purposes of this Article XI,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the request
of the corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves service by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation,"
as referred to in this Article XI.
(k) CONTINUATION OF RIGHTS. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article XI shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(l) REPEAL OR MODIFICATION. Any repeal or modification of this
Article XI by the stockholders of the Corporation shall not adversely affect any
rights to indemnification and to advancement of expenses that any person may
have at the time of such repeal or modification with respect to any acts or
omissions occurring prior to such repeal or
modification.
ARTICLE XII
AMENDMENTS
SECTION 12.01. AMENDMENTS. These Bylaws, or any of them, may be
altered, amended or repealed, or new bylaws may be made, but only to the extent
any such alteration, amendment, repeal or new bylaw is not inconsistent with any
provision of the Certificate of Incorporation, by two-thirds of the number of
directors constituting the entire Board.