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EXHIBIT 3.9
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FIBERNET TELECOM GROUP, INC.
Incorporated under the laws
of the State of Delaware
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AMENDED AND RESTATED BY-LAWS
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As adopted on August 17, 2000
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BY-LAWS OF
FIBERNET TELECOM GROUP, INC.
ARTICLE I
OFFICES
1.1 Registered Office.
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The registered office of FiberNet Telecom Group, Inc., a Delaware
corporation (the "Corporation") in the State of Delaware shall be at 9 East
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Loockerman Street, City of Dover, County of Kent 19901, and the registered agent
in charge thereof shall be National Registered Agents, Inc.
1.2 Other Offices.
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The Corporation may also have an office or offices at any other place or
places within or outside the State of Delaware.
ARTICLE II
MEETING OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
2.1 Annual Meetings.
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The annual meeting of the stockholders for the election of directors, and
for the transaction of such other business as may properly come before the
meeting, shall be held at such place, date and hour as shall be fixed by the
Board of Directors (the "Board") and designated in the notice or waiver of
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notice thereof, except that no annual meeting need be held if all actions,
including the election of directors, required by the General Corporation Law of
the State of Delaware (the "Delaware Statute") to be taken at a stockholders'
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annual meeting are taken by written consent in lieu of meeting pursuant to
Section 2.12 of this Article II.
2.2 Other Meetings.
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Meetings of stockholders for any purpose other than the election of
directors may be held at such time and place, within or without the State of
Delaware, as shall be stated in the notice of the meeting.
2.3 Special Meetings.
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A special meeting of the stockholders for any purpose or purposes may be
called by the Board or by the President.
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2.4 Notice of Meetings.
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Except as otherwise required by statute, the Certificate of Incorporation
of the Corporation (the "Certificate") or these By-laws, notice of each annual
or special meeting of the stockholders shall be given to each stockholder of
record entitled to vote at such meeting not less than 10 nor more than 60 days
before the day on which the meeting is to be held, by delivering written notice
thereof to each stockholder personally, or by mailing a copy of such notice,
postage prepaid, directly to each stockholder at such stockholder's address as
it appears in the records of the Corporation, or by transmitting such notice
thereof to such stockholder at such address by telegraph, cable or other
telephonic transmission. Every such notice shall state the place, the date and
hour of the meeting, and, in case of a special meeting, the purpose or purposes
for which the meeting is called. Except as otherwise provided in these By-laws,
neither the business to be transacted at, nor the purpose of, any meeting of the
stockholders need be specified in any such notice or waiver of notice. Notice
of any adjourned meeting of stockholders shall not be required to be given,
except when expressly required by law.
2.5 Quorum.
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At each meeting of the stockholders, except where otherwise provided by the
Certificate or these By-laws, the holders of a majority of the issued and
outstanding shares of Common Stock of the Corporation entitled to vote at such
meeting, present in person or represented by proxy, shall constitute a quorum
for the transaction of business. In the absence of a quorum, a majority in
interest of the stockholders present in person or represented by proxy and
entitled to vote, or, in the absence of all the stockholders entitled to vote,
any officer entitled to preside at, or act as secretary of, such meeting, shall
have the power to adjourn the meeting from time to time, until stockholders
holding the requisite amount of stock to constitute a quorum shall be present or
represented. At any such adjourned meeting at which a quorum shall be present,
any business may be transacted which might have been transacted at the meeting
as originally called.
2.6 Place of Meetings.
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Annual meetings, special meetings and other meetings of stockholders may be
held at any place within or without the State of Delaware as may be selected
from time to time by the President or Board.
2.7 Organization.
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(a) Unless otherwise determined by the Board, at each meeting of the
stockholders, one of the following shall act as chairman of the meeting and
preside thereat, in the following order of precedence:
(i) the President;
(ii) any director, officer or stockholder of the Corporation
designated by the Board to act as chairman of such meeting and to preside
thereat if the President shall be absent from such meeting; or
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(iii) a stockholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat.
(b) The Secretary or, if he shall be presiding over such meeting in
accordance with the provisions of this Section 2.7 or if the Secretary shall be
absent from such meeting, the person (who shall be an Assistant Secretary, if an
Assistant Secretary has been appointed and is present) whom the chairman of such
meeting shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
2.8 Order of Business.
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The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting.
2.9 Voting.
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Except as otherwise provided by law, the Certificate or these By-laws, at
each meeting of the stockholders, every stockholder of the Corporation shall be
entitled to one vote in person or by proxy for each share of Common Stock of the
Corporation held by such stockholder and registered in such stockholder's name
on the books of the Corporation on the date fixed pursuant to Section 6.7 of
Article VI as the record date for the determination of stockholders entitled to
vote at such meeting. Persons holding stock in a fiduciary capacity shall be
entitled to vote the shares so held. A person whose stock is pledged shall be
entitled to vote, unless, in the transfer by the pledgor on the books of the
Corporation, such person has expressly empowered the pledgee to vote thereon, in
which case only the pledgee or his proxy may represent such stock and vote
thereon. If shares or other securities having voting power stand in the record
of two or more persons, whether fiduciaries, members of a partnership, joint
tenants, tenants in common, tenants by the entirety or otherwise, or if two or
more persons have the same fiduciary relationship respecting the same shares,
unless the Secretary shall be given written notice to the contrary and furnished
with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect:
(a) if only one votes, his act binds all;
(b) if more than one votes, the act of the majority so voting binds
all; and
(c) if more than one votes, but the vote is evenly split on any
particular matter, such shares shall be voted in the manner provided by law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section 2.9 shall
be a majority or even-split in interest. The Corporation shall not vote
directly or indirectly any share of its own capital stock. Any vote of stock
may be given by the stockholder entitled thereto in person or by his proxy
appointed by an instrument in writing, subscribed by such stockholder or by his
attorney thereunto authorized, delivered to the secretary of the meeting;
provided, however, that no proxy shall be voted after three years from its date,
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unless said proxy provides for a longer period. At
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all meetings of the stockholders, all matters (except where other provision is
made by law, the Certificate or these By-laws) shall be decided by the vote of a
majority in interest of the stockholders present in person or by proxy at such
meeting and entitled to vote thereon, a quorum being present. Unless demanded by
a stockholder present in person or by proxy at any meeting and entitled to vote
thereon, the vote on any question need not be by ballot. Upon a demand by any
such stockholder for a vote by ballot upon any question, such vote by ballot
shall be taken. On a vote by ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy, and shall state the
number of shares voted.
2.10 Inspection.
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The chairman of the meeting may at any time appoint one or more inspectors
to serve at any meeting of the stockholders. Any inspector may be removed, and
a new inspector or inspectors appointed, by the chairman of the meeting at any
time. Such inspectors shall decide upon the qualifications of voters, accept
and count votes, declare the results of such vote, and subscribe and deliver to
the secretary of the meeting a certificate stating the number of shares of stock
issued and outstanding and entitled to vote thereon and the number of shares
voted for and against the question, respectively. The inspectors need not be
stockholders of the Corporation, and any director or officer of the Corporation
may be an inspector on any question other than a vote for or against his
election to any position with the Corporation or on any other matter in which he
may be directly interested. Before acting as herein provided, each inspector
shall subscribe an oath faithfully to execute the duties of an inspector with
strict impartiality and according to the best of his ability.
2.11 List of Stockholders.
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It shall be the duty of the Secretary or other officer of the Corporation
who shall have charge of its stock ledger to prepare and make, at least 10 days
before every meeting of the stockholders, a complete list of the stockholders
entitled to vote thereat, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to any such meeting, during ordinary
business hours, for a period of at least 10 days prior to such meeting, either
at a place within the city where such meeting is to be held, which place shall
be specified in the notice of the meeting or, if not so specified, at the place
where the meeting is to be held. Such list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
2.12 Stockholders' Consent in Lieu of Meeting.
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Any action required by the Delaware Statute to be taken at any annual or
special meeting of the stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, by a consent in
writing, as permitted by the Delaware Statute.
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ARTICLE III
BOARD OF DIRECTORS
3.1 General Powers.
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The business, property and affairs of the Corporation shall be managed by
or under the direction of the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate directed or required to be exercised or done by the stockholders.
3.2 Number and Term of Office.
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The number of directors shall be fixed from time to time by the Board, but
shall be no less than one. Directors need not be stockholders. Each director
shall hold office until such director's successor is elected and qualified, or
until such directors' earlier death or resignation or removal in the manner
hereinafter provided.
3.3 Election of Directors.
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At each meeting of the stockholders for the election of directors at which
a quorum is present, the persons receiving the greatest number of votes, up to
the number of directors to be elected, of the stockholders present in person or
by proxy and entitled to vote thereon shall be the directors; provided, however,
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that for purposes of such vote no stockholder shall be allowed to cumulate his
votes. Unless an election by ballot shall be demanded as provided in Section
2.9 of Article II, election of directors may be conducted in any manner approved
at such meeting.
3.4 Resignation, Removal and Vacancies.
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(a) Any director may resign at any time by giving written notice to
the Board or the President. Such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
(b) When one or more directors so resigns and the resignation is
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this section in the filling of other vacancies.
(c) Unless otherwise provided in the Certificate, a certificate of
designations or these By-laws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or
by a sole remaining director.
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(ii) Whenever the holders of any class or classes of stock or
series thereof are entitled to elect one or more directors by the
provisions of the Certificate or any certificate of designation, vacancies
and newly created directorships of such class or classes or series may be
filled by a majority of the directors elected by such class or classes
thereof in office, or by a sole remaining director so elected.
(d) Unless otherwise restricted by statute, by the Certificate or by
these By-laws, any director or the entire Board may be removed, with or without
cause, at any time, by vote of the holders of a majority of the shares then
entitled to vote at an election of directors or by written consent of the
stockholders pursuant to Section 2.12 of Article II.
3.5 Meetings.
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(a) Annual Meetings. As soon as practicable after each annual election
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of directors, the Board shall meet for the purpose of organization and the
transaction of other business, unless it shall have transacted all such business
by written consent pursuant to Section 3.6 of this Article III.
(b) Other Meetings. Other meetings of the Board shall be held at such
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times and at such places as the Board, the President or any director shall from
time to time determine.
(c) Notice of Meetings. Notice shall be given to each director of each
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meeting, including the time, place and purpose of such meeting. Notice of each
such meeting shall be mailed to each director, addressed to such director at
such director's residence or usual place of business, at least two days before
the date on which such meeting is to be held, or shall be sent to such director
at such place by telegraph, cable, wireless or other form of recorded
communication, or be delivered personally or by telephone not later than the day
before the day on which such meeting is to be held, but notice need not be given
to any director who shall attend such meeting. A written waiver of notice,
signed by the person entitled thereto, whether before or after the time of the
meeting stated therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board may hold its meetings at such place
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or places within or outside the State of Delaware as the Board may from time to
time determine, or as shall be designated in the respective notices or waivers
of notice thereof.
(e) Quorum and Manner of Acting. A majority of the total number of
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directors then in office shall be present in person at any meeting of the Board
in order to constitute a quorum for the transaction of business at such meeting,
and the vote of a majority of those directors present at any such meeting at
which a quorum is present shall be necessary for the passage of any resolution
or act of the Board, except as otherwise expressly required by law or these By-
laws. In the absence of a quorum for any such meeting, a majority of the
directors present thereat may adjourn such meeting from time to time until a
quorum shall be present.
(f) Organization. At each meeting of the Board, one of the following
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shall act as chairman of the meeting and preside thereat, in the following order
of precedence:
(i) the President (if a director); or
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(ii) any director designated by a majority of the directors
present.
The Secretary or, in the case of his absence, an Assistant Secretary, if an
Assistant Secretary has been appointed and is present, or any person whom the
chairman of the meeting shall appoint shall act as secretary of such meeting and
keep the minutes thereof.
3.6 Directors' Consent in Lieu of Meeting.
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Any action required or permitted to be taken at any meeting of the Board
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by all of
the directors then in office and such consent is filed with the minutes of the
proceedings of the Board.
3.7 Action by Means of Conference Telephone or Similar Communications
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Equipment.
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Any one or more members of the Board may participate in a meeting of the
Board by means of conference telephone or similar communications equipment by
which all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person at
such meeting.
3.8 Committees.
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The Board may, by resolution or resolutions passed by a majority of the
whole Board, designate one or more committees, each such committee to consist of
one or more directors of the Corporation, which to the extent provided in said
resolution or resolutions shall have and may exercise the powers of the Board in
the management of the business and affairs of the Corporation and may authorize
the seal of the Corporation to be affixed to all papers which may require it,
such committee or committees to have such name or names as may be determined
from time to time by resolution adopted by the Board. A majority of all the
members of any such committee may determine its action and fix the time and
place of its meetings, unless the Board shall otherwise provide. The Board
shall have power to change the members of any such committee at any time, to
fill vacancies and to discharge any such committee, either with or without
cause, at any time.
3.9 Payment of Expenses.
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By resolution of the Board, directors may be paid their expenses, if any,
of attendance at each meeting of the Board. Directors may be paid also either a
fixed sum for attendance at each meeting of the Board or a stated salary as a
director. Such payment will nor preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
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ARTICLE IV
OFFICERS
4.1 Executive Officers.
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The principal officers of the Corporation shall be a Chief Executive
Officer, a President and a Secretary, and may include such other officers as the
Board may appoint pursuant to Section 4.3 of this Article IV. Any two or more
offices may be held by the same person.
4.2 Authority and Duties.
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All officers, as between themselves and the Corporation, shall have such
authority and perform such duties in the management of the Corporation as may be
provided in these By-laws or, to the extent so provided, by the Board.
4.3 Other Officers.
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The Corporation may have such other officers, agents and employees as the
Board may deem necessary, including one or more Assistant Secretaries, one or
more Assistant Treasurers and one or more Vice Presidents, each of whom shall
hold office for such period, have such authority and perform such duties as the
Board or the President may from time to time determine. The Board may delegate
to any principal officer the power to appoint and define the authority and
duties of, or remove, any such officers, agents or employees.
4.4 Term of Office, Resignation and Removal.
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(a) All officers shall be elected or appointed by the Board and shall
hold office for such term as may be prescribed by the Board. Each officer shall
hold office until his successor has been elected or appointed and qualified or
until his earlier death or resignation or removal in the manner hereinafter
provided. The Board may require any officer to give security for the faithful
performance of his duties.
(b) Any officer may resign at any time by giving written notice to the
Board, the President or the Secretary. Such resignation shall take effect at
the time specified therein or, if the time be not specified, at the time it is
accepted by action of the Board. Except as aforesaid, the acceptance of such
resignation shall not be necessary to make it effective.
(c) All officers and agents elected or appointed by the Board shall be
subject to removal at any time by the Board or by the stockholders of the
Corporation with or without cause.
4.5 Vacancies.
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Any vacancy occurring in any office of the Corporation shall be filled by
the Board.
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4.6 The Chief Executive Officer.
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The Chief Executive Officer shall be responsible for the general direction
of the business and affairs of the Corporation, subject to the authority of the
Board, and shall perform such other duties as may from time to time be assigned
to the Chief Executive Officer by the Board, or as prescribed by law or these
By-laws.
4.7 The President.
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The President shall be the chief administrative officer of the Corporation,
subject to the authority of the Board and the Chief Executive Officer. After
the Chief Executive Officer, the President shall direct the policies and
management of the Corporation. The President shall perform such other duties as
from time to time may be assigned to the President by the Board or the Chief
Executive Officer, or as otherwise prescribed by law or these By-laws.
4.8 The Secretary.
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The Secretary shall, to the extent practicable, attend all meetings of the
Board and all meetings of the stockholders and shall record all votes and the
minutes of all proceedings in a book to be kept for that purpose. The Secretary
may give, or cause to be given, notice of all meetings of the stockholders and
of the Board, and shall perform such other duties as may be prescribed by the
Board or the President, under whose supervision he shall act. The Secretary
shall keep in safe custody the seal of the Corporation and affix the same to any
duly authorized instrument requiring it and, when so affixed, it shall be
attested by the Secretary's signature or, if appointed, an Assistant Secretary,
Treasurer or an Assistant Treasurer. The Secretary shall keep in safe custody
the certificate books and stockholder records and such other books and records
as the Board may direct, and shall perform all other duties incident to the
office of Secretary and such other duties as from time to time may be assigned
to the Secretary by the Board or the President.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 Execution of Documents.
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The Board shall designate, by either specific or general resolution, the
officers, employees and agents of the Corporation who shall have the power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and in
the name of the Corporation, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; unless so
designated or expressly authorized by these By-laws, no officer, employee or
agent shall have any power or authority to bind the Corporation by any contract
or engagement, to pledge its credit or to render it liable pecuniarily for any
purpose or amount.
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5.2 Deposits.
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All funds of the Corporation not otherwise employed shall be deposited from
time to time to the credit of the Corporation or otherwise as the Board or
Treasurer, or any other officer of the Corporation to whom power in this respect
shall have been given by the Board, shall select.
5.3 Proxies with Respect or Other Securities of Other Corporations.
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The Board shall designate the officers of the Corporation who shall have
authority from time to time to appoint an agent or agents of the Corporation to
exercise in the name and on behalf of the Corporation the powers and rights
which the Corporation may have as the holder of stock or other securities in any
other corporation, and to vote or consent with respect to such stock or
securities. Such designated officers may instruct the person or persons so
appointed as to the manner of exercising such powers and rights, and such
designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal or otherwise, such
written proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its powers and
rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
6.1 Certificates for Shares.
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Every owner of stock of the Corporation shall be entitled to have a
certificate certifying the number and class of shares owned by him in the
Corporation, which shall be in such form as shall be prescribed by the Board.
Certificates shall be numbered and issued in consecutive order and shall be
signed by, or in the name of, the Corporation by President or any Vice
President, and by the Secretary (or an Assistant Secretary, Treasurer or
Assistant Treasurer, if appointed). In case any officer or officers who shall
have signed any such certificate or certificates shall cease to be such officer
or officers of the Corporation, whether because of death, resignation or
otherwise, before such certificate or certificates shall have been delivered by
the Corporation, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though the person or persons who
signed such certificate had not ceased to be such officer or officers of the
Corporation.
6.2 Record.
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A record in one or more counterparts shall be kept of the name of the
person, firm or corporation owning the shares represented by each certificate
for stock of the Corporation issued, the number of shares represented by each
such certificate, the date thereof and, in the case of cancellation, the date of
cancellation. Except as otherwise expressly required by law, the person in
whose name shares of stock stand on the stock record of the Corporation shall be
deemed the owner thereof for all purposes regarding the Corporation.
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6.3 Transfer and Registration of Stock.
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(a) 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, assignation 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 in its books.
(b) The Corporation shall be entitled to recognize the exclusive right
of a person registered on its books as the owner of shares to receive dividends
and to vote as such owner, shall be entitled to hold liable for calls and
assessments the person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of another person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
6.4 Addresses of Stockholders.
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The Corporation, shall, either at its principal place of business or at
such place or places as designated by the Board, keep a record of its
stockholders listing their names and addresses and the number and class of
shares held by each stockholder.
6.5 Lost, Destroyed and Mutilated Certificates.
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The holder of any shares of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of the certificate therefor,
and the Board may, in its discretion, cause to be issued to such holder a new
certificate or certificates for such shares, upon the surrender of the mutilated
certificates or, in the case of loss or destruction of the certificate, upon
satisfactory proof of such loss or destruction, and the Board may, in its
discretion, require the owner of the lost or destroyed certificate or such
holder's legal representative to give the Corporation a bond in such sum and
with such surety or sureties as it may direct to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss or
destruction of any such certificate.
6.6 Regulations.
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The Board may make such rules and regulations as it may deem expedient, not
inconsistent with these By-laws, concerning the issue, transfer and registration
of certificates for stock of the Corporation.
6.7 Fixing Date for Determination of Stockholders of Record.
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(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board, and which record date shall be not more than 60 nor less than 10
days before the date of such meeting. If no record date is fixed by the Board,
the record date for determining stockholders entitled to notice of or to vote at
a meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or, if
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notice is waived, at the close of business on the day next preceding the day on
which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board may fix a new record date for
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the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and which date
shall be not more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board. If no record date has been fixed by
the Board, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
is required by the Delaware Statute, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in this State,
its principal place of business or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board and prior action by the Board is required by the
Delaware Statute, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the day on which the Board adopts the resolution taking such
prior action.
(c) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or 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 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 60 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
adopts the resolution relating thereto.
ARTICLE VII
INDEMNIFICATION AND INSURANCE
7.1 Indemnification.
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(a) As provided in the Certificate, to the fullest extent permitted by
the Delaware Statute as the same exists or may hereafter be amended, a director
of the Corporation shall not be liable to the Corporation or its stockholders
for breach of fiduciary duty as a director.
(b) Without limitation of any right conferred by paragraph (a) of this
Section 7.1, each person who was or is made a party or is threatened to be made
a party to or is otherwise involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact that he or she
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is or was a director, officer or employee of the Corporation or is or was
serving at the request of the Corporation as a director, officer or employee of
another corporation or of a
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partnership, joint venture, trust or other enterprise, including service with
respect to an employee benefit plan (hereinafter an "Indemnitee"), whether the
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basis of such Proceeding is alleged action in an official capacity while serving
as a director, officer or employee or in any other capacity while serving as a
director, officer or employee, shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Delaware Statute, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than permitted prior thereto), against all
expense, liability and loss (including attorneys' fees, judgments, fines, excise
taxes or amounts paid in settlement) reasonably incurred or suffered by such
Indemnitee in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director, officer or employee and shall
inure to the benefit of the Indemnitee's heirs, testators, intestates, executors
and administrators; provided, however, that such person acted in good faith and
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in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Corporation, and with respect to a criminal action or
Proceeding, had no reasonable cause to believe his conduct was unlawful;
provided further, however, that no indemnification shall be made in the case of
-------- ------- -------
an action, suit or Proceeding by or in the right of the Corporation in relation
to matters as to which it shall be adjudged in such action, suit or proceeding
that such director, officer, employee or agent is liable to the Corporation,
unless a court having jurisdiction shall determine that, despite such
adjudication, such person is fairly and reasonably entitled to indemnification;
provided further, however, that, except as provided in Section 7.1(c) of this
-------- ------- -------
Article VII with respect to Proceedings to enforce rights to indemnification,
the Corporation shall indemnify any such Indemnitee in connection with a
Proceeding (or part thereof) initiated by such Indemnitee only if such
Proceeding (or part thereof) initiated by such Indemnitee was authorized by the
Board of the Corporation. The right to indemnification conferred in this Article
VII shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such Proceeding in advance of
its final disposition (hereinafter an "Advancement of Expenses"); provided,
----------- -- -------- --------
however, that, if the Delaware Statute requires, an advancement of expenses
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incurred by an indemnitee in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee benefit plan)
shall be made only upon delivery to the Corporation of an undertaking
(hereinafter an "Undertaking"), by or on behalf of such Indemnitee, to repay all
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amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "Final
-----
Adjudication") that such Indemnitee is not entitled to be indemnified for such
------------
expenses under this Section or otherwise.
(c) If a claim under Section 7.1(b) of this Article VII is not paid in
full by the Corporation within 60 days after a written claim has been received
by the Corporation, except in the case of a claim for an Advancement of
Expenses, in which case the applicable period shall be 20 days, the Indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit,
or in a suit brought by the Corporation to recover an Advancement of Expenses
pursuant to the terms of any Undertaking, the Indemnitee shall be entitled to be
paid also the expense of prosecuting or defending such suit. In (i) any suit
brought by the Indemnitee to enforce a right to indemnification hereunder (but
not in a suit brought by the Indemnitee to enforce a right to an Advancement of
Expenses) it shall be a defense that, and (ii) in any suit by the Corporation to
recover an Advancement of Expenses pursuant to the terms of an Undertaking, the
Corporation
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shall be entitled to recover such expenses upon a Final Adjudication that, the
indemnitee has not met the applicable standard of conduct set forth in the
Delaware Statute. Neither the failure of the Corporation (including the Board,
independent legal counsel, or the stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the Delaware Statute, nor an actual
determination by the Corporation (including the Board, independent legal counsel
or the stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
Indemnitee, be a defense to such suit. In any suit brought by the Indemnitee to
enforce a right to indemnification or to an Advancement of Expenses hereunder,
or by the Corporation to recover an Advancement of Expenses pursuant to the
terms of an Undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such Advancement of Expenses, under this
Section or otherwise shall be on the Corporation.
(d) The rights to indemnification and to the Advancement of Expenses
conferred in this Article VII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the Charter,
agreement, vote of stockholders or disinterested directors or otherwise.
7.2 Insurance.
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The Corporation may purchase and maintain insurance, at its expense, to
protect itself and any person who is or was a director, officer, employee or
agent of the Corporation or any person who is or was serving at the request of
the Corporation as a director, officer, employer or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware Statute.
ARTICLE VIII
AMENDMENT
Any by-law (including these By-laws) may be adopted, amended or repealed by
the vote of the holders of a majority of the shares then entitled to vote or by
the stockholders' written consent pursuant to Section 2.12 of Article II, or by
the vote of the Board or by the directors' written consent pursuant to Section
3.6 of Article III.
ARTICLE IX
GENERAL PROVISIONS
9.1 Books and Records; Examination.
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Any records maintained by the Corporation in the regular course of its
business, including its stock ledger, books of account, and minute books, may be
kept on, or be in any form of information storage, provided that the records can
be converted into clearly legible form
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within a reasonable time. The books and records of the Corporation may be kept
outside of the State of Delaware. Except as may otherwise be provided by the
Delaware Statute, the Board will have the power to determine from time to time
whether and to what extent and at what times and places and under what
conditions any of the accounts, records and books of the Corporation are to be
open to the inspection of any stockholder.
9.2 Dividends.
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Subject to the provisions, if any, of the Delaware Statute and the
Certificate of Incorporation, dividends on the capital shares of the Corporation
may be declared by the Board at any regular or special meeting. Dividends may
be paid in cash, in property or in shares of the capital stock. Before payment
of any dividend, the Board may set aside out of any funds of the Corporation
available for dividends such reserves for any purpose that the directors will
think conducive to the interests of the Corporation.
9.3 Seal.
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The Board may provide a corporate seal, which shall be in the form of a
circle and shall bear the full name of the Corporation, the year of
incorporation of the Corporation and the words and figures "Corporate Seal-
Delaware."
9.4 Fiscal Year.
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The fiscal year of the Corporation shall be the calendar year unless
otherwise determined by the Board.
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