Bylaws - Sportsline USA Inc.
AMENDED AND RESTATED
BYLAWS
OF
SPORTSLINE USA, INC.
(A DELAWARE CORPORATION)
(APRIL 1997)
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INDEX
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PAGE
NUMBER
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ARTICLE ONE - OFFICES....................................................................1
Section 1. Registered Office...................................................1
Section 2. Other Offices.......................................................1
ARTICLE TWO- MEETINGS OF STOCKHOLDERS....................................................1
Section 1. Place...............................................................1
Section 2. Time of Annual Meeting..............................................1
Section 3. Call of Special Meetings............................................1
Section 4. Conduct of Meetings.................................................1
Section 5. Notice and Waiver of Notice.........................................2
Section 6. Business of Special Meeting.........................................2
Section 7. Quorum..............................................................2
Section 8. Required Vote.......................................................2
Section 9. Voting of Shares....................................................3
Section 10. Proxies.............................................................3
Section 11. Stockholder List....................................................3
Section 12. Action Without Meeting..............................................3
Section 13. Fixing Record Date..................................................3
Section 14. Inspectors and Judges...............................................3
Section 15. Advance Notice of Stockholder Proposed Business at Annual
Meeting.............................................................4
ARTICLE THREE - DIRECTORS................................................................5
Section 1. - Number, Election and Term...............................................5
Section 2. Vacancies; Removal..................................................5
Section 3. Powers..............................................................5
Section 4. Place of Meetings...................................................5
Section 5. Annual Meeting......................................................5
Section 6. Regular Meetings....................................................6
Section 7. Special Meetings and Notice.........................................6
Section 8. Quorum and Required Vote............................................6
Section 9. Action Without Meeting..............................................6
Section 10. Telephone Meetings..................................................6
Section 11. Committees..........................................................7
Section 12. Compensation of Directors...........................................7
Section 13. Chairman of the Board...............................................7
Section 14. Stockholder Nominations of Director Candidates......................7
ARTICLE FOUR - OFFICERS..................................................................8
Section 1. Positions...........................................................8
Section 2. Election of Specified Officers by Board.............................8
Section 3. Election or Appointment of Other Officers...........................8
Section 4. Salaries............................................................8
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Section 5. Term................................................................9
Section 6. President...........................................................9
Section 7. Vice Presidents.....................................................9
Section 8. Secretary...........................................................9
ARTICLE FIVE - CERTIFICATES FOR SHARES...................................................9
Section 1. Issue of Certificates...............................................9
Section 2. Legends for Preferences and Restrictions on Transfer...............10
Section 3. Facsimile Signatures...............................................10
Section 4. Lost Certificates..................................................10
Section 5. Transfer of Shares.................................................11
Section 6. Registered Stockholders............................................11
ARTICLE SIX - GENERAL PROVISIONS........................................................11
Section 1. Dividends..........................................................11
Section 2. Reserves...........................................................11
Section 3. Checks.............................................................11
Section 4. Fiscal Year........................................................11
Section 5. Seal...............................................................11
ARTICLE SEVEN - AMENDMENTS OF BYLAWS....................................................12
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SPORTSLINE USA, INC.
AMENDED AND RESTATED BYLAWS
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ARTICLE ONE
OFFICES
Section 1. REGISTERED OFFICE. The registered office of SPORTSLINE USA,
INC., a Delaware corporation (the "Corporation"), shall be located in the City
of Dover, State of Delaware.
Section 2. OTHER OFFICES. The Corporation may also have offices at such
other places, either within or without the State of Delaware, as the Board of
Directors of the Corporation (the "Board of Directors") may from time to time
determine or as the business of the Corporation may require.
ARTICLE TWO
MEETINGS OF STOCKHOLDERS
Section 1. PLACE. All annual meetings of stockholders shall be held at
such place, within or without the State of Delaware, as may be designated by the
Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof. Special meetings of stockholders may be held at such
place, within or without the State of Delaware, and at such time as shall be
stated in the notice of the meeting or in a duly executed waiver of notice
thereof.
Section 2. TIME OF ANNUAL MEETING. Annual meetings of stockholders
shall be held on such date and at such time fixed, from time to time, by the
Board of Directors, provided, that there shall be an annual meeting held every
calendar year at which the stockholders shall elect a board of directors and
transact such other business as may properly be brought before the meeting.
Section 3. CALL OF SPECIAL MEETINGS. Special meetings of stockholders
of the Company may be called only by the Chairman of the Board or by the Board
pursuant to a resolution approved by a majority of the entire Board.
Section 4. CONDUCT OF MEETINGS. The Chairman of the Board (or in his
absence, the President or such other designee of the Chairman of the Board)
shall preside at the annual and
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special meetings of stockholders and shall be given full discretion in
establishing the rules and procedures to be followed in conducting the meetings,
except as otherwise provided by law or in these Bylaws.
Section 5. NOTICE AND WAIVER OF NOTICE. Written or printed notice
stating the place, day and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered not less than ten (10) nor more than sixty (60) days before the day of
the meeting, either personally or by first-class mail, by or at the direction of
the President, the Secretary, or the officer or person calling the meeting, to
each stockholder of record entitled to vote at such meeting. If the notice is
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the stockholder at his address as it appears on the
stock transfer books of the Corporation, with postage thereon prepaid. If a
meeting is adjourned to another time and/or place, and if an announcement of the
adjourned time and/or place is made at the meeting, it shall not be necessary to
give notice of the adjourned meeting unless the Board of Directors, after
adjournment, fixes a new record date for the adjourned meeting or if the
adjournment is for more than 30 days. Notice need not be given to any
stockholder who submits a written waiver of notice by him before or after the
time stated therein. Attendance of a person at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when a stockholder attends
a meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders need be specified in any written
waiver of notice.
Section 6. BUSINESS OF SPECIAL MEETING. Only business within the
purpose or purposes described in the notice required by Section 222 of the
Delaware General Corporation Law may be conducted at a special meeting of
stockholders.
Section 7. QUORUM. The holders of a majority of the shares entitled to
vote, represented in person or by proxy, shall constitute a quorum at meetings
of stockholders except as otherwise provided in the Corporation's certificate of
incorporation (the "Certificate of Incorporation"). If, however, a quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders present in person or represented by proxy shall have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted that might have been transacted at the meeting as originally notified
and called. The stockholders present at a duly organized meeting may continue to
transact business notwithstanding the withdrawal of some stockholders prior to
adjournment, but in no event shall a quorum consist of the holders of less than
one-third (1/3) of the shares entitled to vote and thus represented at such
meeting.
Section 8. REQUIRED VOTE. The vote of the holders of a majority of the
shares entitled to vote and represented at a meeting at which a quorum is
present shall be the act of the Corporation's stockholders, unless the vote of a
greater number is required by law, the Certificate of Incorporation, or these
Bylaws.
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Section 9. VOTING OF SHARES. Each outstanding share, regardless of
class, shall be entitled to vote on each matter submitted to a vote at a meeting
of stockholders, except to the extent that the voting rights of the shares of
any class are limited or denied by the Certificate of Incorporation or the
General Corporation Law of Delaware.
Section 10. PROXIES. A stockholder may vote in person or by proxy
executed in writing by the stockholder or by his duly authorized
attorney-in-fact. No proxy shall be voted or acted upon after three (3) years
from the date of its execution unless otherwise provided in the proxy. Each
proxy shall be revocable unless expressly provided therein to be irrevocable,
and unless otherwise made irrevocable by law.
Section 11. STOCKHOLDER LIST. The officer or agent having charge of the
Corporation's stock transfer books shall make, at least ten (10) days before
each meeting of 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 number and class and series, if any, of shares held
by each. Such list, for a period of ten (10) days prior to such meeting, shall
be subject to inspection by any stockholder at any time during the usual
business hours at the place where the meeting is to be held. 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 transfer books shall be prima facie evidence as to
who are the stockholders entitled to examine such list or transfer book or to
vote at any such meeting of stockholders.
Section 12. ACTION WITHOUT MEETING. Any action required or permitted to
be taken by the stockholders of the Company must be effected at a duly called
annual or special meeting of stockholders of the Company and may not be effected
by any consent in writing by such stockholders.
Section 13. FIXING RECORD DATE. For the purpose of determining
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 in
order to make a determination of stockholders for any other proper purposes, the
Board of Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than sixty
(60) days, and, in case of a meeting of stockholders, not less than ten (10)
days, prior to the date on which the particular action requiring such
determination of stockholders is to be taken. If no record date is fixed for the
determination of stockholders entitled to notice of or to vote at a meeting of
stockholders, or stockholders entitled to receive payment of a dividend, the
date on which the notice of the meeting is mailed or the date on which the
resolutions of the Board of Directors declaring such dividend is adopted, as the
case may be, shall be the record date for such determination of stockholders.
When a determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such determination shall
apply to any adjournment thereof, except where the Board of Directors fixes a
new record date for the adjourned meeting.
Section 14. INSPECTORS AND JUDGES. The Board of Directors in advance of
any meeting may, but need not, appoint one or more inspectors of election or
judges of the vote, as
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the case may be, to act at the meeting or any adjournment thereof. If any
inspector or inspectors, or judge or judges, are not appointed, the person
presiding at the meeting may, but need not, appoint one or more inspectors or
judges. In case any person who may be appointed as an inspector or judge fails
to appear or act, the vacancy may be filled by the Board of Directors in advance
of the meeting, or at the meeting by the person presiding thereat. The
inspectors or judges, if any, shall determine the number of shares of stock
outstanding and the voting power of each, the shares of stock represented at the
meeting, the existence of a quorum, the validity and effect of proxies, and
shall receive votes, ballots and consents, hear and determine all challenges and
questions arising in connection with the right to vote, count and tabulate
votes, ballots and consents, determine the result, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the person presiding at the meeting, the inspector or inspectors or
judge or judges, if any, shall make a report in writing of any challenge,
question or matter determined by him or them, and execute a certificate of any
fact found by him or them.
Section 15. ADVANCE NOTICE OF STOCKHOLDER PROPOSED BUSINESS AT ANNUAL
MEETING. At an annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be properly
brought before an annual meeting, business must be either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board, (b) otherwise properly brought before the meeting by or at the
direction of the Board, or (c) otherwise properly brought before the meeting by
a stockholder. In addition to any other applicable requirements, for business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
Company. To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Company, not less than one
hundred twenty (120) days nor more than one hundred fifty (150) days prior to
the first anniversary of the date of the Company's notice of annual meeting
provided with respect to the previous year's annual meeting; provided, however,
that if no annual meeting was held in the previous year or the date of the
annual meeting has been changed to be more than thirty (30) calendar days
earlier than or sixty (60) calendar days after such anniversary, such notice by
the stockholder to be timely must be so received not more than ninety (90) days
nor later than the later of (i) sixty (60) days prior to the annual meeting or
(ii) the close of business on the tenth (10th) day following the date on which
notice of the date of the annual meeting is given to stockholders or made
public, whichever first occurs. Such stockholder's notice to the Secretary shall
set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of the stockholder proposing such
business, (iii) the class and number of shares of capital stock of the Company
which are beneficially owned by the stockholder, and (iv) any material interest
of the stockholder in such business. The Chairman of an annual meeting shall, if
the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting in accordance with the requirements of this
Article Two, Section 15, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the meeting shall
not be transacted.
Notwithstanding anything in the Bylaws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Article Two, Section
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15; provided, however, that nothing in this Article Two, Section 15 shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said procedure.
ARTICLE THREE
DIRECTORS
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Section 1. - NUMBER, ELECTION AND TERM NUMBER, ELECTION AND TERM. The
number of directors of the Corporation shall be fixed from time to time, within
the limits specified by the Certificate of Incorporation, by resolution of the
Board of Directors; provided, however, no director's term shall be shortened by
reason of a resolution reducing the number of directors. The directors shall be
divided into classes and be elected and hold office for such term or terms as
provided in the Certificate of Incorporation. Directors need not be residents of
the State of Delaware, stockholders of the Corporation or citizens of the United
States.
Section 2. VACANCIES; REMOVAL. A director may resign at any time by
giving written notice to the Board of Directors or the Chairman of the Board.
Such resignation shall take effect at the date of receipt of such notice or at
any later time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Whenever any vacancy on the Board shall occur due to death, resignation,
retirement, disqualification, removal, increase in the number of directors, or
otherwise, only a majority of directors in office, although less than a quorum
of the entire Board, may fill the vacancy or vacancies for the balance of the
unexpired term or terms, at which time a successor or successors shall be duly
elected by the stockholders and qualified. Stockholders shall not, and shall
have no power to, fill any vacancy on the Board. Stockholders may remove a
director from office prior to the expiration of his or her term, but only for
"cause" by an affirmative vote of at least eighty percent (80%) of the combined
voting power of the outstanding shares of capital stock of the Company entitled
to vote for the election of directors, voting together as a single class.
Section 3. POWERS. The business and affairs of the Corporation shall be
managed by its Board of Directors, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by statute or by
the Certificate of Incorporation or by these Bylaws directed or required to be
exercised and done by the stockholders.
Section 4. PLACE OF MEETINGS. Meetings of the Board of Directors,
regular or special, may be held either within or without the State of Delaware.
Section 5. ANNUAL MEETING. The first meeting of each newly elected
Board of Directors shall be held, without call or notice, immediately following
each annual meeting of stockholders.
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Section 6. REGULAR MEETINGS. Regular meetings of the Board of Directors
may also be held without notice at such time and at such place as shall from
time to time be determined by the Board of Directors.
Section 7. SPECIAL MEETINGS AND NOTICE. Special meetings of the Board
of Directors may be called by the Chairman of the Board and shall be called by
the Secretary on the written request of any two directors. Written notice of
special meetings of the Board of Directors shall be given to each director at
least twenty-four (24) hours before the meeting. Except as required by law,
neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors need be specified in the notice or
waiver of notice of such meeting. Notices to directors shall be in writing and
delivered personally or mailed to the directors at their addresses appearing on
the books of the Corporation. Notice by mail shall be deemed to be given at the
time when the same shall be received. Notice to directors may also be given by
telegram, and shall be deemed delivered when the same shall be deposited at a
telegraph office for transmission and all appropriate fees therefor have been
paid. Whenever any notice is required to be given to any director, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a director at a meeting shall constitute a
waiver of notice of such 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 8. QUORUM AND REQUIRED VOTE. A majority of the directors shall
constitute a quorum for the transaction of business and the act of the majority
of the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors, unless a greater number is required by the
Certificate of Incorporation. If a quorum shall not be present at any meeting of
the Board of Directors, the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. At such adjourned meeting at which a quorum shall be
present, any business may be transacted that might have been transacted at the
meeting as originally notified and called.
Section 9. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at a meeting of the Board of Directors or committee thereof may be
taken without a meeting if a consent in writing, setting forth the action taken,
is signed by all of the members of the Board of Directors or the committee, as
the case may be, and such consent shall have the same force and effect as a
unanimous vote at a meeting.
Section 10. TELEPHONE MEETINGS. Directors and committee members may
participate in and hold a meeting by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other. Participation in such a meetings shall constitute
presence in person at the meeting, except where a person participates in the
meeting for the express purpose of objecting to the transaction of any business
on the ground the meeting is not lawfully called or convened.
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Section 11. COMMITTEES. The Board of Directors, by resolution adopted
by a majority of the whole Board of Directors, may designate from among its
members an executive committee and one or more other committees, each of which,
to the extent provided in such resolution, shall have and may exercise all of
the authority of the Board of Directors in the business and affairs of the
Corporation except where the action of the full Board of Directors is required
by statute. Vacancies in the membership of a committee shall be filled by the
Board of Directors at a regular or special meeting of the Board of Directors.
The executive committee shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required. The designation of any such
committee and the delegation thereto of authority shall not operate to relieve
the Board of Directors, or any member thereof, of any responsibility imposed
upon it or him by law.
Section 12. COMPENSATION OF DIRECTORS. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 13. CHAIRMAN OF THE BOARD. The Board of Directors may, in its
discretion, choose a chairman of the board who shall preside at meetings of the
stockholders and of the directors. The Chairman of the Board shall have such
other powers and shall perform such other duties as shall be designated by the
Board of Directors. The Chairman of the Board shall be a member of the Board of
Directors but no other officers of the Corporation need be a director. The
Chairman of the Board shall serve until his successor is chosen and qualified,
but he may be removed at any time by the affirmative vote of a majority of the
Board of Directors.
Section 14. STOCKHOLDER NOMINATIONS OF DIRECTOR CANDIDATES. Only
persons who are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation. Nominations of persons
for election to the Board at an annual or special meeting of stockholders may be
made by or at the direction of the Board by any nominating committee or person
appointed by the Board or by any stockholder of the Corporation entitled to vote
for the election of directors at the meeting who complies with the notice
procedures set forth in this Article Three, Section 14; provided, however, that
nominations of persons for election to the Board at a special meeting may be
made only if the election of directors is one of the purposes described in the
special meeting notice required by Section 222 of the Delaware General
Corporation Law. Nominations of persons for election at annual meetings, other
than nominations made by or at the direction of the Board, shall be made
pursuant to timely notice in writing to the Secretary of the Corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Company, not less than one hundred twenty
(120) days nor more than one hundred fifty (150) days prior to the first
anniversary of the date of the Company's notice of annual meeting provided with
respect to the previous year's annual meeting; provided, however, that if no
annual meeting was held in the previous year or the date of the annual meeting
has been changed to be more than thirty (30) calendar days earlier than or sixty
(60) calendar days after such anniversary, such notice by the
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stockholder to be timely must be so received not more than ninety (90) days nor
later than the later of (i) sixty (60) days prior to the annual meeting or (ii)
the close of business on the tenth (10th) day following the date on which notice
of the date of the annual meeting is given to stockholders or made public,
whichever first occurs. Such stockholder's notice to the Secretary shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director, (i) the name, age, business address and
residence address of the proposed nominee, (ii) the principal occupation or
employment of the proposed nominee, (iii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the proposed
nominee, and (iv) any other information relating to the person that is required
to be disclosed in solicitations for proxies for election of directors pursuant
to Rule 14a under the Securities Exchange Act of 1934, as amended; and (b) as to
the stockholder giving the notice, (i) the name and record address of
stockholder, and (ii) the class and number of shares of capital stock of the
Corporation which are beneficially owned by the stockholder. The Corporation may
require any proposed nominee to furnish such other information as may reasonably
be required by the Corporation to determine the eligibility of such proposed
nominee to serve as director of the Corporation. No person shall be eligible for
election as a director of the Corporation unless nominated in accordance with
the procedures set forth herein. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the foregoing procedure, and if he should so determine, he shall
so declare to the meeting and the defective nomination shall be disregarded.
ARTICLE FOUR
OFFICERS
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Section 1. POSITIONS. The officers of the Corporation shall consist of
a President, one or more Vice Presidents and a Secretary and, if elected by the
Board of Directors by resolution, a Chairman of the Board. Any two or more
offices may be held by the same person.
Section 2. ELECTION OF SPECIFIED OFFICERS BY BOARD. The Board of
Directors at its first meeting after each annual meeting of stockholders shall
elect a President, one or more Vice Presidents and a Secretary.
Section 3. ELECTION OR APPOINTMENT OF OTHER OFFICERS. Such other
officers and assistant officers and agents as may be deemed necessary may be
elected or appointed by the Board of Directors, or, unless otherwise specified
herein, appointed by the President of the Corporation. The Board of Directors
shall be advised of appointments by the President at or before the next
scheduled Board of Directors meeting.
Section 4. SALARIES. The salaries of all officers of the Corporation to
be elected by the Board of Directors pursuant to Article Four, Section 2 hereof
shall be fixed from time to time by the Board of Directors or pursuant to its
discretion. The salaries of all other elected or appointed officers of the
Corporation shall be fixed from time to time by the President of the Corporation
or pursuant to his direction.
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Section 5. TERM. The officers of the Corporation shall hold office
until their successors are chosen and qualified. Any officer or agent elected or
appointed by the Board of Directors or the President of the Corporation may be
removed, with or without cause, by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Any officers or agents appointed by the President of the Corporation
pursuant to Section 3 of this Article Four may also be removed from such officer
positions by the President, with or without cause. Any vacancy occurring in any
office of the Corporation by death, resignation, removal or otherwise shall be
filled by the Board of Directors, or, in the case of an officer appointed by the
President of the Corporation, by the President or the Board of Directors.
Section 6. PRESIDENT. The Chief Executive Officer shall have general
and active management of the business of the Corporation and shall see that all
orders and resolutions of the Board of Directors are carried into effect. In the
absence of the Chairman of the Board or in the event the Board of Directors
shall not have designated a chairman of the board, the Chief Executive Officer
shall preside at meetings of the stockholders and the Board of Directors.
Section 7. VICE PRESIDENTS. The Vice Presidents in the order of their
seniority, unless otherwise determined by the Board of Directors, shall, in the
absence or disability of the President, perform the duties and exercise the
powers of the President. They shall perform such other duties and have such
other powers as the Board of Directors shall prescribe or as the President may
from time to time delegate.
Section 8. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the stockholders and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or President, under whose supervision he shall be. He shall keep in
safe custody the seal of the Corporation and, when authorized by the Board of
Directors, affix the same to any instrument requiring it.
ARTICLE FIVE
CERTIFICATES FOR SHARES
-----------------------
Section 1. ISSUE OF CERTIFICATES. The shares of the Corporation shall
be represented by certificates, provided that the Board of Directors of the
Corporation may provide by reso1lution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock 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 chairman or vice-chairman of the Board of Directors, or the
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President or Vice President, and by the Treasurer or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, representing the
number of shares registered in certificate form.
Section 2. LEGENDS FOR PREFERENCES AND RESTRICTIONS ON TRANSFER. If the
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional, or other special rights of each class of
stock or series thereof and the qualifications or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided by law, in
lieu of the foregoing requirements, there may be set forth on the face or back
of the certificate which the Corporation shall issue to represent such class or
series of stock, a statement that the Corporation will furnish without charge to
each stockholder who so requests the powers, designations, preferences and
relative, participating, optional, or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
A written restriction on the transfer or registration of transfer of a
security of the Corporation, if permitted by law and noted conspicuously on the
certificate representing the security may be enforced against the holder of the
restricted security or any successor or transferee of the holder including an
executor, administrator, trustee, guardian or other fiduciary entrusted with
like responsibility for the person or estate of the holder. Unless noted
conspicuously on the certificate representing the security, a restriction, even
though permitted by law, is ineffective except against a person with actual
knowledge of the restriction. If the Corporation issues any shares that are not
registered under the Securities Act of 1933, as amended, and registered or
qualified under the applicable state securities laws, the transfer of any such
shares shall be restricted substantially in accordance with the following
legend:
"THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 OR UNDER ANY APPLICABLE STATE LAW. THEY MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR PLEDGED WITHOUT (1) REGISTRATION UNDER
THE SECURITIES ACT OF 1933 AND ANY APPLICABLE STATE LAW, OR (2) AT
HOLDER'S EXPENSE, AN OPINION (SATISFACTORY TO THE CORPORATION) OF
COUNSEL (SATISFACTORY TO THE CORPORATION) THAT REGISTRATION IS NOT
REQUIRED."
Section 3. FACSIMILE SIGNATURES. Any and all signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon such
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 were such officer, transfer agent or registrar at the date
of the issue.
Section 4. LOST CERTIFICATES. The Corporation may issue a new
certificate of stock in place of any certificate therefore issued by it, alleged
to have been lost, stolen or
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destroyed, and the Corporation may require the owner of the lost, stolen, or
destroyed certificate, or his legal representative to give the Corporation a
bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section 5. TRANSFER OF SHARES. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 6. REGISTERED STOCKHOLDERS. The Corporation shall be entitled
to recognize the exclusive rights of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such share
or shares 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 SIX
GENERAL PROVISIONS
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Section 1. DIVIDENDS. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in
cash, property, or its own shares pursuant to law and subject to the provisions
of the Certificate of Incorporation.
Section 2. RESERVES. The Board of Directors may by resolution create a
reserve or reserves out of earned surplus for any proper purpose or purposes,
and may abolish any such reserve in the same manner.
Section 3. CHECKS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 4. FISCAL YEAR. The fiscal year of Corporation shall end on
December 31 of each year, unless otherwise fixed by resolution of the Board of
Directors.
Section 5. SEAL. The corporate seal shall have inscribed thereon the
name and state of incorporation of the Corporation. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
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ARTICLE SEVEN
AMENDMENTS OF BYLAWS
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These Bylaws may be altered, amended or repealed or new Bylaws may be
adopted at any meeting of the Board of Directors at which a quorum is present,
by the affirmative vote of a majority of the directors present at such meeting;
provided, however, that the affirmative vote of either (i) at least eighty
percent (80%) of the combined voting power of the outstanding shares of capital
stock of the Company entitled to vote for the election of directors, voting
together as a single class, or (ii) the majority of the entire Board of
Directors, shall be required to alter, amend or repeal, or adopt any provision
inconsistent with, Sections 3, 6, 12 or 15 of Article Two, Sections 1, 2 or 14
of Article Three or this Article Seven.
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