By-Laws - Internet Capital Group Inc.
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INTERNET CAPITAL GROUP, INC.
BY-LAWS
As adopted on _____________, 1999
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TABLE OF CONTENTS
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Page
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ARTICLE I STOCKHOLDERS.........................................................1
Section 1.1 Annual Meetings...........................................1
Section 1.2 Special Meetings..........................................1
Section 1.3 Notice of Meetings; Waiver................................1
Section 1.4 Quorum....................................................2
Section 1.5 Voting....................................................2
Section 1.6 Voting by Ballot..........................................2
Section 1.7 Adjournment...............................................2
Section 1.8 Proxies...................................................3
Section 1.9 Notice of Stockholder Business and Nominations............3
Section 1.10 Organization; Procedure; Voting Lists....................6
Section 1.11 Inspectors of Elections..................................6
Section 1.12 Opening and Closing of Polls.............................7
Section 1.13 No Stockholder Action by Written Consent or Telephone
Conference...............................................7
ARTICLE II BOARD OF DIRECTORS...................................................8
Section 2.1 General Powers............................................8
Section 2.2 Number and Term of Office.................................8
Section 2.3 Election of Directors.....................................8
Section 2.4 Annual and Regular Meetings...............................9
Section 2.5 Special Meetings; Notice..................................9
Section 2.6 Quorum; Voting............................................9
Section 2.7 Adjournment..............................................10
Section 2.8 Action Without a Meeting.................................10
Section 2.9 Regulations; Manner of Acting............................10
Section 2.10 Resignations............................................11
Section 2.11 Removal of Directors....................................11
Section 2.12 Vacancies and Newly Created Directorships...............11
Section 2.13 Compensation............................................11
Section 2.14 Reliance on Accounts and Reports, etc...................11
ARTICLE III COMMITTEES OF DIRECTORS AND ADVISORY BOARD.........................12
Section 3.1 Committees of Directors..................................12
Section 3.4 Proceedings..............................................12
Section 3.3 Quorum and Manner of Acting..............................12
Section 3.4 Action by Telephonic Communications......................13
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Section 3.5 Absent or Disqualified Members...........................13
Section 3.6 Resignations.............................................13
Section 3.7 Removal..................................................13
Section 3.8 Vacancies................................................13
Section 3.9 Advisory Board...........................................13
ARTICLE IV OFFICERS............................................................13
Section 4.1 Number.......................................................14
Section 4.2 Election.................................................14
Section 4.3 Compensation.............................................14
Section 4.4 Removal and Resignation; Vacancies.......................14
Section 4.5 Authority and Duties of Officers.........................14
Section 4.6 Chairman of the Board....................................15
Section 4.7 Vice Chairman of the Board...............................15
Section 4.8 President................................................15
Section 4.9 Managing Directors.......................................15
Section 4.10 Secretary...............................................15
Section 4.11 Assistant Secretary.....................................16
Section 4.12 Treasurer...............................................16
Section 4.13 Additional Officers.....................................16
Section 4.13 Security................................................17
ARTICLE V CAPITAL STOCK........................................................17
Section 5.1 Certificates of Stock, Uncertificated Shares.............17
Section 5.2 Signatures; Facsimile....................................17
Section 5.3 Lost, Stolen or Destroyed Certificates...................17
Section 5.4 Transfer of Stock........................................18
Section 5.5 Record Date.....................................................18
Section 5.6 Registered Stockholders..................................18
Section 5.7 Transfer Agent and Registrar.............................19
ARTICLE VI INDEMNIFICATION.....................................................19
Section 6.1 Nature of Indemnity......................................19
Section 6.2 Successful Defense.......................................20
Section 6.3 Determination that Indemnification is Proper.............20
Section 6.4 Advance Payment of Expenses..............................20
Section 6.5 Procedure for Indemnification of Directors and Officers..21
Section 6.6 Survival; Preservation of Other Rights...................21
Section 6.7 Insurance................................................22
Section 6.8 Severability.............................................22
Section 6.9 Limitation on Liability..................................22
Section 6.10 Appearance as a Witness.................................22
Section 6.11 Indemnification of Employees and Agents.................23
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ARTICLE VII OFFICES............................................................23
Section 7.1 Registered Office and Agent..............................23
Section 7.2 Other Offices............................................23
ARTICLE VIII GENERAL PROVISIONS................................................23
Section 8.1 Dividends................................................23
Section 8.2 Reserves.................................................24
Section 8.3 Execution of Instruments...................................24
Section 8.4 Deposits.................................................24
Section 8.5 Checks...................................................24
Section 8.6 Sale, Transfer, etc. of Securities.......................24
Section 8.7 Voting as Stockholder....................................24
Section 8.8 Fiscal Year..............................................25
Section 8.9 Seal.....................................................25
Section 8.10 Books and Records; Inspection...........................25
ARTICLE IX AMENDMENT OF BY-LAWS................................................25
Section 9.1 Amendment................................................25
ARTICLE X CONSTRUCTION.........................................................26
Section 10.1 Construction............................................26
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INTERNET CAPITAL GROUP, INC.
BY-LAWS
As amended on ___________, 1999
ARTICLE I
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STOCKHOLDERS
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Section 1.1 Annual Meetings. The annual meeting of the stockholders of the
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Corporation for the election of Directors and for the transaction of such other
business as properly may come before such meeting, including, without
limitation, for the purpose of the delivery of an annual report of the Board of
Directors, shall be held at such place, within or without the State of Delawar
e,
such date, and such time as designated by the Board of Directors and set forth
in the notice or waiver of notice of the meeting.
Section 1.2 Special Meetings. Special meetings of the stockholders for any
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proper purpose or purposes may be called at any time by the Board of Directors
or the Chief Executive Officer. A special meeting shall be called by the Chief
Executive Officer or by the Chairman or Vice Chairman of the Board of Directors
pursuant to a resolution approved by a majority of the entire Board of
Directors. Such special meetings of the stockholders shall be held at such
places, within or without the State of Delaware, as shall be specified in the
respective notices or waivers of notice thereof. Only business within the
purpose or purposes described in the notice or waiver thereof required by these
By-laws may be conducted at a special meeting of the stockholders. No
stockholder shall have the power to require that a meeting of the stockholders
be held
or that any matter be voted on by the stockholders.
Section 1.3 Notice of Meetings; Waiver.
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(a) Written or printed notice of the place, date and hour of the meeting of the
stockholders, and, in the case of a special meeting, the purpose or
purposes for which such meeting is called, shall be delivered not less than
ten nor more than sixty days prior to the meeting, either personally or by
mail, by or at the direction of the Board of Directors or person calling
the meeting, to each stockholder of record entitled to vote at such
meeting. If such notice is mailed, it shall be deemed to have been
delivered to a stockholder on the third day after it is deposited in the
United States mail, postage prepaid, addressed to the stockholder at his or
her address as it appears on the record of stockholders of the Corporation,
or, if he or she shall have filed with the Secretary of the Corporation a
written reque
st that notices to him or her be mailed to some other address,
then directed to him or her at such other address. Such further notice
shall be given as may be required by law or otherwise by these By-laws.
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(b) No notice of any meeting of stockholders need be given to any stockholder
who submits a signed waiver of notice, whether before or after the meeting.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the stockholders need be specified in a written
waiver of notice. The attendance of any stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except
when the stockholder attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting is not lawfully called or convened.
Section 1.4 Quorum. Except as otherwise required by law or by the
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Certificate of Incorporation, a quorum shall be present at a meeting of
stockholders if the holders of record of more than 50% of the then outstanding
shares entitled to vote at a meeting of the stockholders are represented at the
meeting in person or by proxy.
Section 1.5 Voting. If, pursuant to Section 5.5 of these By-laws, a record
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date has been fixed, every holder of record of shares entitled to vote at a
meeting of stockholders shall be entitled to one vote for each share outstanding
in his or her name on the books of the Corporation at the close of business on
such record date. If no record date has been fixed, then every holder of record
of shares entitled to vote at a meeting of stockholders shall be entitled to one
vote for each share of stock standing in his or her name on the books of the
Corporation at the close of business on the day next preceding the day on which
notice of the meeting is given, or, if notice is waived, at the close of
bus
iness on the day next preceding the day on which the meeting is held. Except
as otherwise required by law or by the Certificate of Incorporation or by these
By-laws, the vote of a majority of the shares represented in person or by proxy
at any meeting at which a quorum is present shall be sufficient for the
transaction of any business at such meeting.
Section 1.6 Voting by Ballot. No vote of the stockholders need be taken by
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written ballot unless otherwise required by law. Any vote which need not be
taken by ballot may be conducted in any manner approved by the meeting.
Section 1.7 Adjournment. The chairman of the meeting or the holders of
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record of more than 50% of the then outstanding shares entitled to vote at a
meeting of the stockholders shall have the power to adjourn such meeting from
time to time, without any notice other than announcement at the meeting of the
time and place of the holding of the adjourned meeting, provid
ed that if the
adjournment is for more than thirty days, or if after the adjournment a new
record date for the adjourned meeting is fixed pursuant to Section 5.5 of these
By-laws, a notice of the adjourned meeting, conforming to the requirements of
Section 1.3 of these By-laws, shall be given to each stockholder of record
entitled to vote at such meeting. If such meeting is adjourned by the
stockholders, the resumption of such meeting shall occur at such time and place
as shall be determined by a vote of the holders of record of more than 50% of
the then outstanding shares entitled to vote at such meeting of the
stockholders. Upon the resumption of
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such adjourned meeting, any business may be transacted that might have been
transacted at the meeting as originally called.
Section 1.8 Proxies. Any stockholder entitled to vote at any meeting of
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the stockholders or to express consent to or dissent from corporate action in
writing without a meeting may vote in person or may authorize another person or
persons to vote at any such meeting and express such consent or dissent for him
or her by proxy executed in writing by the stockholder. A stockholder may
authorize a valid proxy by executing a written instrument signed by such
stockholder, or by causing his or her signature to be affixed to such writing by
any reasonable means including, but not limited to, by facsimile signat
ure or
photographic, photostatic, or similar reproduction or by transmitting or
authorizing the transmission of a telegram, telex, cablegram or other means of
electronic transmission to the person designated as the holder of the proxy, a
proxy solicitation firm or a like authorized agent. 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. Proxies by
telegram, cablegram or other electronic transmission must either set forth or be
submitted with information from which it can be determined that the te
legram,
cablegram or other electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of a
writing or transmission created pursuant to this section may be substituted or
used in lieu of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used, provided that such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
Section 1.9 Notice of Stockholder Business and Nominations.
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(A) Annual Meetings of Stockholders.
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(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
stockholders (i)
by or at the direction of the Board of Directors or
the Chairman of the Board, or (ii) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with
the notice procedures set forth in clauses (2) and (3) of this
paragraph and who was a stockholder of record at the time such notice
is delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder, pursuant to clause (ii) of
paragraph (A)(1) of this
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By-law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than ninety
days nor more than one hundred and twenty days prior to the first
anniversary of the preceding year's annual meeting; provided, that if
the date of the annual meeting is advanced by more than twenty days or
delayed by more than seventy days from such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than one
hundred and twenty days prior to such annual meeting and not later t
han
the close of business on the later of the ninetieth day prior to such
annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made. For purposes of
determining whether a stockholder's notice shall have been delivered in
a timely manner for the annual meeting of stockholders, the "first
anniversary of the preceding year's annual meeting" shall initially be
deemed to be May 15, 1999. In no event shall the adjournment of an
annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a Director all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise
required,
in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-11
thereunder, including such person's written consent to being named in
the proxy statement as a nominee and to serving as a Director if
elected; (b) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of
such stockholder and of any beneficial owner on whose behalf the
proposal is made; and (c) as to the stockholder giving the notice and
any beneficial owner on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class
and number of
shares of the Corporation which are owned beneficially
and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-law 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 naming all
of the nominees for Director or specifying the size of the increased
Board of Directors made by the Corporation at least one hundred days
prior to the first anniversary of the preceding year's annual meeting,
a stockholder's notice under this paragraph shall also be considered
timely, but only with respect to nominees for any new positions created
by such increase, if it shall
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be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the tenth day
following the day on which such public announcement is first made by
the Corporation.
(B) Special Meetings of Stockholders. Only such business as shall have
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been brought before the special meeting of the stockholders pursuant to the
Corporation's notice of meeting pursuant to Section 1.3 of these By-laws shall
be conducted at 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 meetin
g (i) by or at
the direction of the Board of Directors or (ii) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with the notice
procedures set forth in this By-law and who is a stockholder of record at the
time such notice is delivered to the Secretary of the Corporation. Nominations
by stockholders of persons for election to the Board of Directors may be made at
such special meeting of stockholders if the stockholder's notice as required by
paragraph (A)(2) of this By-law shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the one hundred
and twentieth day prior to such special meeting and not later than the close of
business on the later of the ninetieth day prior to such special meeting or the
tenth day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the ad
journment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(C) General.
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(1) Only persons who are nominated in accordance with the
procedures set forth in this By-law shall be eligible to serve as
Directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in
accordance with the procedures set forth in this By-law. 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 in accordance with the procedures set forth
in this By-law and, if any proposed nomination or business is not in
compliance with this By-law, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this By-law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act.
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(3) Notwithstanding the foregoing provisions of this By-law, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this By-law. Nothing in this By-law shall be
deemed to affect any right of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
Section 1.10 Organization; Procedure; Voting Lists. At every meeting
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of stockholders the presiding officer shall be the chairman of the meeting, who
shall be a Director (or representative
thereof) designated by a majority of the
Board of Directors. The order of business and all other matters of procedure at
every meeting of stockholders, including the regulation of the manner of voting
and the conduct of discussion as seem to him or her in order, shall be
determined by such presiding officer. All meetings of the stockholders shall be
held at the principal place of business of the Corporation or at such other
place within or without the State of Delaware as shall be specified or fixed in
the notices or waivers of notice thereof.
At the request of any stockholder, the Corporation shall make
available, at least ten days before a meeting of the stockholders, a complete
list of the stockholders entitled to vote at such meeting or any adjournment
thereof, arranged in alphabetical order, with the address of and the shares held
by each, which list, for a period of ten days prior to such meeting, shall be
kept on file at the registered office or principal place of business of the
Corpora
tion and shall be subject to inspection by any stockholder at any time
during usual business hours. Such list shall also be produced and kept open at
the time and place of the meeting and shall be subject to the inspection of any
stockholder during the whole time of the meeting. The original stock record book
shall be prima-facie evidence as to who are the stockholders entitled to examine
such list or transfer records or to vote at any meeting of stockholders. Failure
to comply with the requirements of this Section shall not affect the validity of
any action taken at the meeting.
Section 1.11 Inspectors of Elections. Preceding any meeting of the
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stockholders, the Board of Directors shall appoint one or more persons to act as
Inspectors of Elections, and may designate one or more alternate inspectors. In
the event no inspector or alternate is able to act, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting
. Each
inspector, before entering upon the discharge of the duties of an inspector,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspector shall:
(a) ascertain the number of shares outstanding and the
voting power of each,
(b) determine the shares represented at a meeting and the
validity of proxies and ballots, count all votes and ballots,
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(c) determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination by the inspectors;
and
(d) certify his or her determination of the number of shares
represented at the meeting, and his or her count of all votes and ballots.
The inspector may appoint or retain other persons or entities to assist
in the performance of the duties of inspector.
When determining the shares represented and the validity of proxies and
ballots, the inspector shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance
with Section 1.8 of these By-laws, ballots and the regular books and records of
t
he Corporation. The inspector may consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers or their nominees or a similar person which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspector considers other
reliable information as outlined in this section, the inspector, at the time of
his or her certification pursuant to (e) of this section, shall specify the
precise information considered, the person or persons from whom the information
was obtained, when this information was obtained, the means by which the
information was obtained, and the basis for the inspector's belief that such
information is accurate and reliable.
Section 1.12 Opening and Closing of Polls. The date and time for the
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opening and the closing of the polls for each matter to be voted upon at
a
stockholder meeting shall be announced at the meeting. The inspector of the
election shall be prohibited from accepting any ballots, proxies or votes or any
revocations thereof or changes thereto after the closing of the polls, unless
the Court of Chancery upon application by a stockholder shall determine
otherwise.
Section 1.13 No Stockholder Action by Written Consent or Telephone
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Conference.
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Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of the stockholders of the Corporation, and the ability of the
stockholders to consent in writing or by telephone to the taking of any action
is specifically denied.
ARTICLE II
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BOARD OF DIRECTORS
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Section 2.1 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 and may make all decisions and take
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all actions for the Corporation. The powers of the Corporation which may be
exercised by the Directors without the approval of the stockholders shall
include, without limitation, the power to purchase, hold and sell investments;
to borrow and loan funds and provide guarantees of the obligations of others;
and to acquire other companies in the ordinary course of business.
Section 2.2 Number and Term of Office. The number of Directors shall
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be fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the entire Board of Directors, but shall consist of not less than
five (5) Directors nor more than nine (9) Directors. The Directors, other than
those who may be elected by the
holders of any series of Preferred Stock, if
any, shall be divided into three classes, designated Classes I, II and III,
which shall be as nearly equal in number as possible. Directors of Class I shall
be elected to hold office for a term expiring at the annual meeting of
stockholders to be held in 2000, Directors of Class II shall be elected to hold
office for a term expiring at the annual meeting of stockholders to be held in
2001 and Directors of Class III shall be elected to hold office for a term
expiring at the annual meeting of stockholders to be held in 2002. At each
succeeding annual meeting of stockholders following such initial classification
and election, the respective successors of each class shall be elected for three
year terms. Each Director (whenever elected) shall hold office until his or her
successor has been duly elected and qualified, or until his or her earlier
death, insanity, retirement, resignation or removal. Directors need not be
residents of the State of Delaware.
Section 2.3 Election of Directors. Except as otherwise provided in
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Sections 2.11 and 2.12 of these By-laws, the Directors shall be elected at each
annual meeting of the stockholders. If the annual meeting for the election of
Directors is not held on the date designated therefor, the Directors shall cause
the meeting to be held as soon thereafter as convenient. At each meeting of the
stockholders for the election of Directors, provided a quorum is present, the
Directors shall be elected by a plurality of the votes validly cast in such
election.
Section 2.4 Annual and Regular Meetings. The annual meeting of the
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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) and the date and
hour of such meetings, provided that such meetings shall be held no less
frequently than quarterly. 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 telephone, including a voice messaging system or other system or
technology designed to record and communicate messages, telegraph, facsimile,
electronic mail or other electronic means to each Director who shall not have
been present at the meeting at which such action was taken, addressed to him or
her at his or her usual place of business, or shall be delivered to him or her
personally. Notice of such action need not be given to any Direc
tor who attends
the first regular
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meeting after such action is taken without protesting the lack of notice to him
or her, 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 2.5 Special Meetings; Notice. Special meetings of the Board of
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Directors shall be held whenever called by any Director, 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 at least forty-eight
hours' notice to each other Director, if notice is given to each Director
personally or by telephone, including a voice messaging system or other system
or technology d
esigned to record and communicate messages, telegraph, facsimile,
electronic mail or other electronic means, or on five days' notice from the
official date of deposit in the mail if notice is mailed to each Director,
addressed to him or her at his or her 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 or her, 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. Such notice need not state the purpose or purposes of, nor the business
to be transacted at, such meeting, except as may otherwise be required by law or
provided for by the Certificate of Incorporation.
Section 2.6 Quorum; Voting. Unless otherwise required by law or
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provided in the Certificate of Incorporation, at all meetings of the Board of
Directors, the pr
esence of a majority of the total number of Directors then in
office shall constitute a quorum for the transaction of business of the
Directors. Except as otherwise required by law, or except as provided herein or
in the Certificate of Incorporation, the act or vote of a majority of the total
number of Directors then in office shall be the act of the Board of Directors. A
Director who is present at a meeting of the Directors at which action on any
matter of the Corporation is taken shall be presumed to have assented to the
action unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as secretary of the meeting before the adjournment thereof or shall deliver such
dissent to the Corporation immediately after the adjournment of the meeting.
Such right to dissent shall not apply to a Director who voted in favor of such
action.
Section 2.7 Adjournment. A majority of the Directors present, whether
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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 are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.5
of these By-laws shall be given to each Director.
Section 2.8 Action Without a Meeting. Any action permitted or required
------------------------
by law, the Certificate of Incorporation, or these By-laws to be taken at a
meeting of the Directors or of any committee designated by the Directors may be
taken without a meeting if a consent in writing, setting forth the action to be
taken, is signed by all the Directors or members of such committee,
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<PAGE>
as the case may be, provided that the writing or writings are filed with the
minutes of proceedings of the Board of Directors or committee. Such consent
shall have the same force and effect as a unanimous vote at a meeting and may be
stated as such in any document or instrument filed with the Secretary of State
of Delaware, and the execution of such consent shall constitute attendance or
presence in person at a meeting of the Board of Directors or any such committee,
as the case may be. Subject to the requirements of law, the Certificate of
Incorporation, or these By-laws for notice of meetings, Directors, or members of
any committee designated by the Board of Directors, may participate in and hold
a meeting of the Board of Directors or any committee of Directors, as the case
may be, by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in such meeting shall constitute attendance and presence in
person at such meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
Section 2.9 Regulations; Manner of Acting. Meetings of the Board of
-----------------------------
Directors may be held at such place or places as shall be determined from time
to time by resolution of the Directors. At all meetings of the Board of
Directors, business shall be transacted in such order as shall from time to time
be determined by resolution of the Directors to the extent consistent with
applicable law, the Certificate of Incorporation and these By-laws. The Board of
Directors may adopt such other 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.
Attendance of a Director at a meeting shall constitute a waiver of notice of
such meeting, except where a Director attends a meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting
is not lawfully called or convened. The Directors shall act only as a Board, and
the individual Directors shall have no power as such.
Section 2.10 Resignations. Any Director may resign at any time. Such
------------
resignation shall be made in writing, signed by such Director, to the
Corporation and shall take effect at the time specified therein, or if no time
be specified, at the time of its receipt by the remaining Directors. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
Section 2.11 Removal of Directors. Any Director may be removed at any
--------------------
time, but only for cause, upon the affirmative vote of the holders of a majority
of the combined voting power of the then outstanding stock of the Corporation
entitled to vote generally in the election of Directors at any meeting of such
stockholders, including meetings called expressly for that purpose, and at which
a quorum of stockholders is present. Subject to the rights of the holders of any
series of preferred stock of the Corporation, any vacancy in the Board of
Directors caused by any such removal shall be filled at such meeting by the
stockholders entitled to vote for the election of the Director so removed.
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<PAGE>
Section 2.12 Vacancies and Newly Created Directorships. Subject to the
-----------------------------------------
rights of the holders of any series of preferred stock of the Company and except
as provided in Section 2.11, if any vacancies occur in the Board of Directors,
by reason of death, resignation, removal or otherwise, or if the authorized
number of Directors shall be increased, the Directors then in office shall
continue to act and such vacancies and newly created Directorships may be filled
by a majority of the Directors then in office, although less than a quorum. A
Director elected to fill a vacancy or a newly created Directorship shall hold
office until the next election of the class of Directors for which such Di
rector
has been chosen and until his or her successor has been elected and qualified or
until his or her earlier death, resignation or removal.
Section 2.13 Compensation. Unless otherwise approved by the holders of
------------
a majority of the combined voting power of the then outstanding stock of the
Corporation entitled to vote generally in the election of Directors, the
Directors shall not receive compensation for their services as Directors.
However, the Directors shall be entitled to be reimbursed for reasonable
out-of-pocket costs and expenses incurred in the course of their service as
Directors hereunder.
Section 2.14 Reliance on Accounts and Reports, etc. A Director, or a
-------------------------------------
member of any committee designated by the Board of Directors shall, in the
performance of his or her duties, be fully protected in relying in good faith
upon the records of the Corporation and upon information, opinions, repor
ts 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 Director or 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.
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<PAGE>
ARTICLE III
-----------
COMMITTEES OF DIRECTORS AND ADVISORY BOARD
------------------------------------------
Section 3.1 Committees of Directors. The Board of Directors may
-----------------------
designate one or more committees, each such committee to consist of one or more
Directors, as fixed from time to time by the Board of Directors. The Board of
Directors may designate one or more Directors as alternate members of any such
committee, who may replace any absent or disqualified member or members at any
meeting of such committee. Thereafter, members (and alternate members, if any)
of each such committee may be desi
gnated at the annual meeting of the Board of
Directors. Any such committee may be dissolved or re-designated from time to
time by the Board of Directors. Each member (and each alternate member) of any
such committee (whether designated at an annual meeting of the Board of
Directors or to fill a vacancy or otherwise) shall hold office until his or her
successor shall have been designated or until he or she shall cease to be a
Director, or until his or her earlier death, resignation or removal.
Section 3.2 Proceedings. Any such committee may fix its own rules of
-----------
procedure and may meet at such place (within or without the State of Delaware),
at such time and upon such notice, if any, as it shall determine from time to
time. Any such committee shall keep regular minutes of its meetings and report
the same to the Board of Directors at the next meeting of the Board following
such committee meeting, except that when the Board meeting is held within two
days after the c
ommittee meeting, such report shall, if not made at the first
meeting, be made to the Board of Directors at its second meeting following such
committee meeting.
Section 3.3 Quorum and Manner of Acting. Except as may be otherwise
---------------------------
provided in the resolution creating such committee, at all meetings of any
committee the presence of members (or alternate members) constituting a majority
of the total authorized membership of such committee shall constitute a quorum
for the transaction of business. The act of the majority of the members present
at any meeting at which a quorum is present shall be the act of such committee.
Any action required or permitted to be taken at any meeting of any such
committee may be taken without a meeting if all members of such committee shall
consent to such action in writing and such writing or writings are filed with
the minutes of the proceedings of the committee. The members of any such
committee shall act only as a com
mittee, and the individual members of such
committee shall have no power as such.
Section 3.4 Action by Telephonic Communications. Members of any
-----------------------------------
committee designated by the Board of Directors may participate in a meeting of
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 pursuant to this provision shall
constitute presence in person at such meeting.
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<PAGE>
Section 3.5 Absent or Disqualified Members. In the absence or
------------------------------
disqualification of a member of any committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she
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 3.6 Resignations. Any member (and any alternate member) of any
------------
committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the President. Unless otherwise
specified therein, such resignation shall tak
e effect upon delivery.
Section 3.7 Removal. Any member (and any alternate member) of any
-------
committee may be removed from his or her position as a member (or alternate
member, as the case may be) of such committee at any time, either for or without
cause, by resolution adopted by a majority of the whole Board of Directors.
Section 3.8 Vacancies. If any vacancy shall occur in any committee, by
---------
reason of disqualification, death, resignation, removal or otherwise, the
remaining members (and any alternate members) shall continue to act, and any
such vacancy may be filled by the Board of Directors.
Section 3.9 Advisory Board. The Board of Directors may, in their sole
--------------
discretion, form and appoint persons to an advisory board of the Corporation
(the "Advisory Board") and pay compensation to persons serving on the Advisory
Board. The sole purpose of the Advisory Board shall be to advise the
Board of
Directors and the Advisory Board shall have no other powers.
ARTICLE IV
----------
OFFICERS
--------
Section 4.1 Number. The officers of the Corporation shall be designated
------
by the Board of Directors and shall include such officers as the Directors may
from time to time determine, which officers may (but need not) include a
Chairman of the Board, a Vice Chairman of the Board, a President, one or more
Managing Directors (and in case of each such Managing Director, with such
descriptive title, if any, as the Directors shall deem appropriate), a
Secretary, an Assistant Secretary, and a Treasurer. The Board of Directors also
may elect one or more other officers as the Board of Directors may determine.
Any number of offices may be held by the same person. No officer need be a
Director of the Corporation.
Section 4.2
Election. Officers shall be chosen in such manner and shall
--------
hold their offices for such terms as determined by the Board of Directors. Each
officer shall hold office until
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<PAGE>
his or her successor has been elected and qualified in his stead, or until his
or her earlier death, resignation, retirement, disqualification, or removal from
office.
Section 4.3 Compensation. The Corporation shall have the authority to
------------
pay and provide compensation and other benefits to its officers and employees.
The compensation and benefits of all officers of the Corporation shall be fixed
from time to time by the Board of Directors, unless otherwise delegated by the
Board of Directors to a particular committee or officer.
Section 4.4 Removal and Resignation; Vacancies. Any officer may be
----------------------------------
removed for or without cause at any time by the Board of
Directors or by the
President, if such powers of removal have been conferred by the Board of
Directors, but such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Designation of an officer shall not itself
create contract rights. 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 President. 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. The Board of Directors may abolish any office at any time
unless prohibited by law or statute.
Section 4.5 Authority and Duties of Officers. In addition to any
--------------------------------
specifically enumerated duties, services, and powers, the officers of the
Corporation shall have such authority and shall exercise such powers
and perform
such duties as may be specified by law or statute, by the Certificate of
Incorporation, and by these By-laws, or as the Board of Directors may from time
to time determine or as may be assigned to such officers by any competent
superior officer. The Board of Directors may also at any time limit or
circumvent the enumerated duties, services and powers of any officer. In
addition to the designation of officers and the enumeration of their respective
duties, services and powers, the Board of Directors may grant powers of
attorneys to individuals to act as agent for or on behalf of the Corporation, to
do any act which would be binding on the Corporation, to incur any expenditures
on behalf of or for the Corporation, or to execute, deliver and perform any
agreements, acts, transactions or other matters on behalf of the Corporation.
Such powers of attorney may be revoked or modified as deemed necessary by the
Board of Directors.
Section 4.6 Chairman of the Board. The Chairman of the Board
shall, if
---------------------
one is designated by the Board of Directors and if present, preside at all
meetings of the stockholders and of the Board of Directors and exercise and
perform such other powers and duties as may be from time to time assigned by the
Board of Directors. He shall assist the Directors in the formulation of the
policies of the Corporation, and shall be available to other officers for
consultation and advice.
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<PAGE>
Section 4.7 Vice Chairman of the Board. The Vice Chairman of the
--------------------------
Board, if one is designated by the Board of Directors, shall, in the absence of
the Chairman of the Board, preside at all meetings of the stockholders and of
the Board of Directors and exercise and perform such other powers and duties as
may be from time to time assigned by the Board of Directors.
Section 4.8 President. The President, if one is designated by the
---------
Board of Directors, shall be the Chief Executive Officer of the Corporation and
shall have day-to-day supervision of the affairs of the Corporation, such powers
and duties subject at all times to the authority of the Board of Directo
rs. In
the absence or disability of the Chairman of the Board and the Vice Chairman of
the Board, the President shall exercise the powers and perform the duties of the
Chairman of the Board.
Section 4.9 Managing Directors. Each Managing Director that is
------------------
designated by the Board of Directors shall generally assist the President and
shall have such powers and perform such duties and services as shall from time
to time be prescribed or delegated to him by the President or the Board of
Directors.
Section 4.10 Secretary. The Secretary, if one is designated by the
---------
Board of Directors, shall have the following powers and duties:
(a) He or she shall keep or cause to be kept a record of
all the proceedings of the meetings of the stockholders and of the Board of
Directors in books provided for that purpose.
(b) He or she shall cause all notices to be duly given
in accordan
ce with the provisions of these By-laws and as required by law.
(c) Whenever any committee shall be appointed pursuant to
a resolution of the Board of Directors, he or she shall furnish a copy of such
resolution to the members of such committee.
(d) He or she shall be the custodian of the records and
of the seal of the Corporation and cause such seal (or a facsimile thereof) to
be affixed to all certificates representing shares of the Corporation prior to
the issuance thereof and to all instruments the execution of which on behalf of
the Corporation under its seal shall have been duly authorized in accordance
with these By-laws, and when so affixed he or she may attest the same.
(e) He or she shall properly maintain and file all books,
reports, statements, certificates and all other documents and records required
by law, the Certificate of Incorporation or these By-laws.
(f) He or she shall have charge of the
stock books and
ledgers of the Corporation and shall cause the stock and transfer books to be
kept in such manner as to show at
-15-
<PAGE>
any time the number of shares of stock of the Corporation of each class issued
and outstanding, the names (alphabetically arranged) and the addresses of the
holders of record of such shares, the number of shares held by each holder and
the date as of which each became such holder of record.
(g) He or she shall sign (unless the Treasurer, an
Assistant Treasurer or an Assistant Secretary shall have signed) certificates
representing shares of the Corporation the issuance of which shall have been
authorized by the Board of Directors.
(h) He or she shall perform, in general, all duties
incident to the office of Secretary and such other duties as may be specified in
these By-laws or as may be assigned to him or h
er from time to time by the Board
of Directors or the President.
Section 4.11 Assistant Secretary. The Assistant Secretary, if one is
-------------------
designated by the Board of Directors, shall generally assist the Secretary.
Section 4.12 Treasurer. The Treasurer, if one is designated by the
---------
Board of Directors, shall be the chief accounting and financial officer of the
Corporation and have custody of all the funds, securities and other valuables of
the Corporation which may have or shall come into his or her hands. The
Treasurer shall have active control of and shall be responsible for all matters
pertaining to the accounts and finances of the Corporation and shall have such
powers and perform such duties as may be prescribed by the President, the Board
of Directors or elsewhere in these By-laws.
Section 4.13 Additional Officers. The Board of Directors may appoint
-------------------
such o
ther officers and agents as it may deem appropriate, and such other
officers and agents shall hold their offices for such terms and shall exercise
such powers and perform such duties as may be determined from time to time by
the Board of Directors. The Board of Directors from time to time may delegate to
the President the power to appoint subordinate officers or agents and to
prescribe their respective rights, terms of office, authorities and duties. Any
such officer or agent may remove any such subordinate officer or agent appointed
by him or her, for or without cause.
Section 4.14 Security. The Board of Directors may require any officer,
--------
agent or employee of the Corporation to provide security for the faithful
performance of his or her duties, in such amount and of such character as may be
determined from time to time by the Board of Directors.
ARTICLE V
---------
CAPITAL STOCK
-------------
Section 5.1 Certificates of Stock, Uncertificated Shares. The shares
--------------------------------------------
of the Corporation shall be represented by certificates, provided that 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
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<PAGE>
Corporation shall be uncertificated shares. Any such resolution shall not apply
to shares represented by a certificate until each certificate is surrendered to
the Corporation. Notwithstanding the adoption of such a resolution by the Board
of Directors, every holder of stock in the Corporation represented by
certificates and upon request every holder of uncertificated shares shall be
entitled to have a certificate signed by, or in the name of the Corporation, by
the President or a Managing Director, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary, representing the number
of shares registered in certificate form. Such certificate shall be in such form
as the Board of Directors may determine, to the extent consisten
t with
applicable law, the Certificate of Incorporation and these By-laws.
Section 5.2 Signatures; Facsimile. All of such signatures on the
---------------------
certificate referred to in Section 5.1 of these By-laws may be a facsimile,
engraved or printed, to the extent permitted by law. In case any officer,
transfer agent or registrar who has signed, or whose facsimile signature has
been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 5.3 Lost, Stolen or Destroyed Certificates. The Corporation 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 Corpora
tion of an affidavit of the owner or owners of such
certificate, setting forth such allegation. The Corporation may require the
owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to give the Corporation a bond sufficient to indemnify it
against any claim that may be made against it on account of the alleged loss,
theft or destruction of any such certificate or the issuance of any such new
certificate.
Section 5.4 Transfer of Stock. Upon surrender to the Corporation or the
-----------------
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncertificated stock, the
Corporation shall send to the registered owner thereof a written n
otice
containing the information required to be set forth or stated on certificates
pursuant to Sections 151, 156, 202(a) or 218(a) of the Delaware General
Corporation Law. Subject to the provisions of the Certificate of Incorporation
and these By-laws, the Board of Directors may prescribe such additional rules
and regulations as it may deem appropriate relating to the issue, transfer and
registration of shares of the Corporation.
Section 5.5 Record Date. In order to determine the stockholders
-----------
entitled to notice of, or entitled to vote at, any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix in advance a record
date, which record date shall not precede the date on which
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<PAGE>
the resolution fixing the record date is adopted by the Board of Directors, and
which shall not be more than sixty nor less than ten days before the date of
such meeting. A determination of stockholders of record entitled to notice of or
entitled 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.
In order that the Corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights of the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of
Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than sixty days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 5.6 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.
Section 5.7 Transfer Agent and Registrar. The Board of Directors may
----------------------------
appoint one or more transfer agents and one or more registrars, and may require
all certificates representing shares to bear the signature of any such transfer
agents or registrars.
ARTICLE VI
----------
INDEMNIFICATION
---------------
Section 6.1 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 (a "Proceeding"),
whether civil, criminal, administrative, arbitrative, or investigative, or any
appeal in such a Proceeding or any inquiry or investigation that could lead to
such a Proceeding, by reason of the fact that he or she, or a person of whom he
or she is the legal representative, is or was 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, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or
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<PAGE>
domestic corporation, limited liability company, partnership, joint venture,
sole proprietorship, trust, employee benefit plan, or other enterprise, or by
reason of any action alleged to have been taken or omitted in such capacity,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, provided that he or she acted in good faith and in a manner he or she
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 or her conduct was unlawful. The indemnifi
cation
provided in this Article VI could involve indemnification for negligence or
under theories of strict liability. In the case of an action or suit by or in
the right of the Corporation to procure a judgment in its favor (1) the
indemnification of a Director or officer 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. Notwithstanding the fore
going,
but subject to Section 6.5 of these By-laws, the Corporation shall not be
obligated to indemnify a Director or officer of the Corporation in respect of a
Proceeding (or part thereof) instituted by such Director or officer, unless such
Proceeding (or part thereof) has been authorized by the Board of Directors.
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 or she 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 or her
conduct was unlawful.
The rights granted pursuant to this Article VI shall be deemed contract
rights. No amendment, modification or repeal of this Article VI shall have the
effect of limiting or denying any such rights with res
pect to actions taken or
Proceedings arising prior to any such amendment, modification or repeal.
Section 6.2 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
6.1 of these By-laws or in defense of any claim, issue or matter therein, he or
she shall be indemnified against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection therewith.
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<PAGE>
Section 6.3 Determination that Indemnification is Proper. Any
--------------------------------------------
indemnification of a Director or officer of the Corporation under Section 6.1 of
these By-laws (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 he or she has not met the applicable
standard of conduct set forth in Section 6.1 of these By-laws. Any such
determination shall be made (1) by a majority vote of the Directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such Directors, or if such Directors so direct, by
independent
legal counsel in a written opinion, or (3) by the stockholders.
Section 6.4 Advance Payment of Expenses. The right to indemnification
---------------------------
conferred in this Article VI shall include the right to be paid or reimbursed by
the Corporation the reasonable expenses incurred by a person of the type
entitled to be indemnified under Sections 6.1, 6.2, and 6.3 who was, is, or is
threatened to be made a named defendant or respondent in a Proceeding in advance
of the final disposition of the Proceeding and without any determination as to
the person's ultimate entitlement to indemnification; provided, however, that
the payment of such expenses incurred by any such person in advance of the final
disposition of a Proceeding shall be made only upon delivery to the Corporation
of a written affirmation by such Director or officer of his or her good faith
belief that he has met the standard of conduct necessary for indemnification
under this Article VI and a written und
ertaking, by or on behalf of such person,
to repay all amounts so advanced if it shall ultimately be determined that such
indemnified person is not entitled to be indemnified under this Article VI or
otherwise. 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 6.5 Procedure for Indemnification of Directors and Officers.
-------------------------------------------------------
Any indemnification of a Director or officer of the Corporation under Sections
6.1, 6.2, and 6.3 of these By-laws, or advance of costs, charges and expenses to
a Director or officer under Section 6.4 of these By-laws, shall be made
promptly, and in any event within thirty days, upon the written request of the
Director or officer. If a determination by the Corporation that the Director or
officer is entitled to indemni
fication pursuant to this Article is required, and
the Corporation fails to respond within sixty 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 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 or her 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 6.4 of these
By-laws where the required undertaking, if any, has been received by or tendered
to the Corporation) t
hat the claimant has not met the standard of conduct set
forth in Section 6.1 of these By-laws, but the
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<PAGE>
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 or she has met the applicable standard of conduct
set forth in Section 6.1 of these By-laws, 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 such action or create
a presumption that the claimant has not met the applicable sta
ndard of conduct.
Section 6.6 Survival; Preservation of Other Rights. The foregoing
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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 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 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 and the advancement and payment of expenses
provided by this Article VI shall not be deemed exclusive of any other rights to
whic
h those indemnified may be entitled under any by-law, common or statutory
law, provision of the Certificate of Incorporation, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in his
or her 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 6.7 Insurance. The Corporation shall purchase and maintain
---------
insurance, at its expense, to protect the Corporation and any person who is or
was or has agreed to become a Director, officer, employee, or agent of the
Corporation, or is or was serving at the request of the Corporation as a
Director, officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another foreign or domestic corporation, limited
liability company, partnership, jo
int venture, sole proprietorship, trust,
employee benefit plan, or other enterprise against any expense, liability, or
loss asserted against him or her or incurred by him or her or on his or her
behalf in any such capacity, or arising out of his or her status as such,
whether or not the Corporation would have the power to indemnify him or her
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 6.8 Severability. If this Article VI or any portion hereof
------------
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless
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indemnify and hold harmless each Director or officer or any other person
indemnified pursuant to this Article VI as to costs, charges and expenses
(including reasonable attorneys' fees), judgments, fines and amounts paid in
settlement with respect to any action, suit or proceeding, whether civil,
criminal, administrative or investigative to the full extent permitted by any
applicable portion of this Article VI that shall not have been invalidated and
to the fullest extent permitted by applicable law.
Section 6.9 Limitation on Liability. No Director or officer shall be
-----------------------
personally liable, as such, for any action taken or omitted from being taken
unless: (i) such Director or officer breached or failed to
perform the duties of
his office; and (ii) the breach or failure to perform constituted recklessness,
self-dealing or willful misconduct. The foregoing shall not apply to any
responsibility or liability under a criminal statute or liability for the
payment of taxes under Federal, state, or local law.
Section 6.10 Appearance as a Witness. Notwithstanding any other
-----------------------
provision of this Article VI, the Corporation shall pay or reimburse expenses
incurred by a Director or officer in connection with his appearance as a witness
or other participation in a Proceeding at a time when he is not a named
defendant or respondent in the Proceeding.
Section 6.11 Indemnification of Employees and Agents. The Corporation,
---------------------------------------
by adoption of a resolution of the Board of Directors, may indemnify and advance
expenses to an employee or agent of the Corporation to the same extent and
subject to the same cond
itions under which it may indemnify and advance expenses
to Directors and officers under this Article VI; and, the Corporation may
indemnify and advance expenses to persons who are not or were not Directors,
officers, employees or agents of the Corporation but who are or were serving at
the request of the Corporation as director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of another foreign
or domestic corporation, limited liability company, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise against
any liability asserted against him or her and incurred by him or her in such a
capacity or arising out of his or her status as such a person to the same extent
that it may indemnify and advance expenses to Directors and officers of the
Corporation under this Article VI.
ARTICLE VII
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OFFICES
-------
Section 7.1 Registered Office and Agent. The registered agent and
---------------------------
office of the Corporation in the State of Delaware shall be Corporation Service
Company, located at 1013 Centre Road in the City of Wilmington, County of New
Castle (19805) or such other agent and office (which need not be a place of
business of the company) as the Board of Directors may designate from time to
time in the manner provided by law.
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Section 7.2 Other Offices. The Corporation may maintain offices or
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places of business at such other locations within or without the State of
Delaware as the Board of Directors may from time to time determine or as the
business of the Corporation may require.
ARTICLE VIII
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GENERAL PROVISIONS
------------------
Section 8.1 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.
Section 8.2 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 8.3 Execution of Instruments. The President, any Managing
------------------------
Director, 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 President ma
y 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 8.4 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 President, or by such officers or
agents as may be authorized by the Board of Directors or the President to make
such determination.
Section 8.5 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
President from time to time may determine.
Section 8.6 Sale, Transfer, etc. of Securities. To the extent
--------------------
--------------
authorized by the Board of Directors or by the President, any Managing Director,
the Secretary or the Treasurer or any other officers designated by the Board of
Directors or the President 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.
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Section 8.7 Voting as Stockholder. Unless otherwise determined by
---------------------
resolution of the Board of Directors, the President or any Managing Director
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 fr
om time to time confer such power and authority upon any other
person or persons.
Section 8.8 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 8.9 Seal. The seal of the Corporation shall be circular in
----
form, and shall contain the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware." The form of such
seal shall be subject to alteration by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed, affixed or
reproduced, or may be used in any other lawful manner.
Section 8.10 Books and Records; Inspection. Except to the extent
-----------------------------
otherwise required by law, the books and records
of the Corporation shall be
kept at such place or places within or without the State of Delaware as may be
determined from time to time by the Board of Directors.
ARTICLE IX
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AMENDMENT OF BY-LAWS
--------------------
Section 9.1 Amendment. Subject to any express provision in the
---------
Certificate of Incorporation to the contrary, these By-laws may be amended,
altered or repealed:
(a) by resolution adopted by a majority of the Board of
Directors at any special or regular meeting of the Board of Directors without
the assent or vote of the stockholders of the Corporation if, in the case of
such special meeting only, notice of such amendment, alteration or repeal is
contained in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stockholders
upo
n the affirmative vote of not less than two-thirds (662/3%) of the holders of
the combined voting power of the outstanding shares of the Corporation entitled
to vote generally in the election of Directors if, in the case of such special
meeting only, notice of such amendment, alteration or repeal is contained in the
notice or waiver of notice of such meeting.
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ARTICLE X
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CONSTRUCTION
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Section 10.1 Construction. In the event of any conflict between the
------------
provisions of these By-laws as in effect from time to time and the provisions of
the Certificate of Incorporation of the Corporation as in effect from time to
time, the provisions of such Certificate of Incorporation shall be controlling.
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