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Exhibit 3.1
AMENDED AND RESTATED
BYLAWS
OF
SNYDER COMMUNICATIONS, INC.
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TABLE OF CONTENTS
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Page
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1. OFFICES............................................................... 1
1.1. Registered Office............................................... 1
1.2. Other Offices................................................... 1
2. MEETINGS OF STOCKHOLDERS.............................................. 1
2.1. Place of Meetings............................................... 1
2.2. Annual Meetings and Advance Notice of Proposals................. 1
2.3. Special Meetings................................................ 4
2.4. Notice of Meetings.............................................. 4
2.5. Waivers of Notice............................................... 5
2.6. Business at Special Meetings.................................... 5
2.7. List of Stockholders............................................ 5
2.8. Quorum at Meetings.............................................. 6
2.9. Voting and Proxies.............................................. 6
2.10. Required Vote................................................... 6
2.11. Action Without a Meeting........................................ 7
3. DIRECTORS............................................................. 7
3.1. Powers.......................................................... 7
3.2. Number and Election............................................. 7
3.3. Vacancies....................................................... 8
3.4. Meetings........................................................ 8
3.4.1. Regular Meetings........................................ 8
3.4.2 Special Meetings........................................ 8
3.4.3. Telephone Meetings...................................... 8
3.4.4. Action Without Meeting.................................. 9
3.4.5. Waiver of Notice of Meeting............................. 9
3.5. Quorum and Vote at Meetings..................................... 9
3.6. Committees of Directors......................................... 9
3.7. Compensation of Directors....................................... 10
4. OFFICERS.............................................................. 10
4.1. Positions....................................................... 10
4.2. Chairperson..................................................... 11
4.3. President....................................................... 11
4.4. Vice President.................................................. 11
4.5. Secretary....................................................... 12
4.6. Assistant Secretary............................................. 12
4.7. Treasurer....................................................... 12
4.8. Assistant Treasurer............................................. 12
</TABLE>
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<TABLE>
<CAPTION>
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4.9. Term of Office.................................................. 12
4.10. Compensation.................................................... 13
4.11. Fidelity Bonds.................................................. 13
5. CAPITAL STOCK......................................................... 13
5.1. Certificates of Stock; Uncertificated Shares.................... 13
5.2. Lost Certificates............................................... 13
5.3. Record Date..................................................... 14
5.3.1. Actions by Stockholders................................. 14
5.3.2. Payments................................................ 15
5.4. Stockholders of Record.......................................... 15
6. INDEMNIFICATION; INSURANCE............................................ 15
6.1. Authorization of Indemnification................................ 15
6.2. Right of Claimant to Bring Action Against the Corporation....... 16
6.3. Non-exclusivity................................................. 17
6.4. Survival of Indemnification..................................... 17
6.5. Insurance....................................................... 17
7. GENERAL PROVISIONS.................................................... 18
7.1. Inspection of Books and Records................................. 18
7.2. Dividends....................................................... 18
7.3. Reserves........................................................ 18
7.4. Execution of Instruments........................................ 18
7.5. Fiscal Year..................................................... 19
7.6. Seal............................................................ 19
</TABLE>
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AMENDED AND RESTATED
BYLAWS
OF
SNYDER COMMUNICATIONS, INC.
1. OFFICES
1.1. Registered Office
The registered office of the Corporation shall be in Wilmington,
Delaware, and the registered agent in charge thereof shall be Corporation Trust
Company.
1.2. Other Offices
The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors may from
time to time determine or as may be necessary or useful in connection with the
business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings
All meetings of the stockholders shall be held at such place as may be
fixed from time to time by the Board of Directors, the Chairperson or the
President and stated in the notice of the meeting.
2.2. Annual Meetings and Advance Notice of Proposals
2.2.1. Annual Meetings and Advance Notice of Proposals
The annual meeting of stockholders for the election of directors and
the transaction of other business as may properly come before the meeting shall
be held in each year at such date and time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting.
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At any annual meeting of the stockholders, only such business shall be
conducted as shall have been properly brought before the annual meeting. To be
properly brought before an annual meeting business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (b) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (c) otherwise properly brought
before the meeting by a stockholder who is a holder of record at the time of the
giving of the notice provided for in this paragraph, who is entitled to vote at
the annual meeting and who complies with the procedures set forth in this
paragraph. For business properly to be brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof, in proper
written form, either by personal delivery or by United States mail, postage
prepaid, to the Secretary. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than 45 days nor more than 75 days prior to the anniversary
of the date on which the Corporation first mailed its proxy materials for the
immediately preceding annual meeting; provided, however, that in the event that
the date of the annual meeting is changed by more than 30 days from the
anniversary date of the immediately preceding annual meeting, notice by the
stockholder to be timely must be so delivered or received not earlier than the
120th day prior to such annual meeting and not later than the close of business
on the later of the 70th day prior to such annual meeting or the 10th day
following the day on which public announcement of the date of such meeting is
first made. To be in proper written form, a stockholder's notice to the
Secretary shall set forth in writing 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 address, as they appear
on the corporation's books, of the stockholder proposing such business; (iii)
the class and number of shares of the Corporation that are beneficially owned by
the stockholder; (iv) any material interest of the stockholder in such business;
and (v) if the stockholder intends to solicit proxies in support of such
stockholder's proposal, a representation to that effect. The foregoing notice
requirements shall be deemed satisfied by a stockholder if the stockholder has
notified the Corporation of his or her intention to present a proposal at an
annual meeting and such stockholder's proposal has been included in a proxy
statement that has been prepared by management of the Corporation to solicit
proxies for such annual meeting, provided, however, that if such stockholder
does not appear or send a qualified representative to present such proposal at
an annual meeting, the Corporation need not present such proposal for a vote at
such meeting, notwithstanding that proxies in respect of such vote may have been
received by the Corporation. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with the
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procedures set forth in this paragraph. The chairman of an annual meeting may
refuse to permit any business to be brought before an annual meeting that fails
to comply with the foregoing procedures or, in the case of a stockholder
proposal, if the stockholder solicits proxies in support of such stockholder's
proposal without having made the representation required by clause (v) of the
third preceding sentence.
Only persons who are nominated in accordance with the procedures set
forth in this paragraph shall be eligible for election as directors at a meeting
of stockholders. Nominations of persons for election to the Board of Directors
may be made at a meeting of stockholders by or at the direction of the Board of
Directors or by any stockholder who is a stockholder of record at the time of
giving of the notice of nomination provided for in this paragraph, who is
entitled to vote for the election of directors and who complies with the
procedures set forth in this paragraph. Any stockholder of record entitled to
vote for the election of directors at a meeting may nominate persons for
election as directors only if timely written notice of such stockholder's intent
to make such nomination is given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary. To be timely, a stockholder's
notice must be delivered to or mailed and received at the principal executive
offices of the Corporation (a) with respect to an election to be held at an
annual meeting of stockholders, not less than 45 days nor more than 75 days
prior to the anniversary of the date on which the Corporation first mailed its
proxy materials for the immediately preceding annual meeting; provided, however,
that in the event that the date of the annual meeting is changed by more than 30
days from the anniversary date of the immediately preceding annual meeting,
notice by the stockholder to be timely must be so delivered or received not
earlier than the 120th day prior to such annual meeting and not later than the
close of business on the later of the 70th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made and (b) with respect to an election to be held at a
special meeting of stockholders for the election of directors, not earlier than
the 90th day prior to such special meeting and not later than the close of
business on the later of the 60th day prior to such special meeting or the 10th
day following the day on which public announcement is first made of the date of
the special meeting. Each such notice shall set forth: (a) the name and
address of the stockholder who intends to make the nomination and of the person
or persons to be nominated; (b) a representation that the stockholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (c) a description of all arrangements
or understandings between the stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (d) such other information
regarding each nominee proposed by such stockholder as would have been required
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to be included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had each nominee been nominated, or intended
to be nominated, by the Board of Directors; (e) the consent of each nominee to
serve as a director of the Corporation if so elected; and (f) if the stockholder
intends to solicit proxies in support of such stockholder's nominee(s), a
representation to that effect. The chairman of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedures or if the stockholder solicits proxies in favor of such
stockholder's nominee(s) without having made the representation required by the
immediately preceding sentence. Only such persons who are nominated in
accordance with the procedures set forth in this paragraph shall be eligible to
serve as directors of the corporation.
For purposes of the two immediately preceding paragraphs, "public
announcement" shall mean disclosure (i) in a press release reported by the Dow
Jones News Service, Reuters Information Service or any similar or successor news
wire service or (ii) in a writing distributed generally to stockholders or (iii)
in a document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act
of 1934 or any successor provisions thereto.
2.2.2. Initial Annual Meeting
Notwithstanding Section 2.2.1 above, for purposes of giving timely
notice of business to be properly brought before the initial annual meeting of
stockholders, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not earlier than the 120th
day prior to the initial annual meeting and not later than the close of business
on the later of the 70th day prior to such initial annual meeting or the 10th
day following the day on which public announcement of the date of such meeting
is first made.
2.3. Special Meetings
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called by the Board of Directors,
the Chairperson or the President.
2.4. Notice of Meetings
Notice of any meeting of stockholders, stating the place, date and
hour of the meeting, and (if it is a special meeting) the purpose or purposes
for which the meeting is called, shall be given to each stockholder entitled to
vote at such meeting not less than ten nor more than sixty days before the date
of the meeting (except to
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the extent that such notice is waived or is not required as provided in the
General Corporation Law of the State of Delaware (the "Delaware General
Corporation Law") or these Bylaws). Such notice shall be given in accordance
with, and shall be deemed effective as set forth in, Section 222 (or any
successor section) of the Delaware General Corporation Law.
2.5. Waivers of Notice
Whenever the giving of any notice is required by statute, the
Corporation's Certificate of Incorporation or these Bylaws, a waiver thereof, in
writing and delivered to the Corporation, signed by the person or persons
entitled to said notice, whether before or after the event as to which such
notice is required, shall be deemed equivalent to notice. Attendance of a
stockholder at a meeting shall constitute a waiver of notice (1) of such
meeting, except when the stockholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting, and (2) (if it is a
special meeting) of consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, unless the
stockholder objects to considering the matter at the beginning of the meeting.
2.6. Business at Special Meetings
Business transacted at any special meeting of stockholders shall be
limited to the purposes stated in the notice (except to the extent that such
notice is waived or is not required as provided in the Delaware General
Corporation Law or these Bylaws).
2.7. List of Stockholders
After the record date for a meeting of stockholders has been fixed, at
least ten days before such meeting, the officer who has charge of the stock
ledger of the Corporation shall make a list of all stockholders entitled to vote
at the meeting, 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 the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place in the city where the meeting
is to be held, which place is to be specified in the notice of the meeting, or
at the place where the meeting is to be held. Such list shall also, for the
duration of the meeting, be produced and kept open to the examination of any
stockholder who is present at the time and place of the meeting.
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2.8. Quorum at Meetings
Stockholders may take action on a matter at a meeting only if a quorum
exists with respect to that matter. Except as otherwise provided by statute or
by the Corporation's Certificate of Incorporation, the holders of a majority of
the shares entitled to vote at the meeting, and who are present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. Where a separate vote by a class
or series or classes or series is required, a majority of the outstanding shares
of such class or series or classes or series, present in person or represented
by proxy, shall constitute a quorum entitled to take action with respect to that
vote on that matter. Once a share is represented for any purpose at a meeting
(other than solely to object (1) to holding the meeting or transacting business
at the meeting, or (2) (if it is a special meeting) to consideration of a
particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice), it is deemed present for quorum purposes for
the remainder of the meeting and for any adjournment of that meeting unless a
new record date is or must be set for the adjourned meeting. The holders of a
majority of the voting shares represented at a meeting, whether or not a quorum
is present, may adjourn such meeting from time to time.
2.9. Voting and Proxies
Unless otherwise provided in the Delaware General Corporation Law or
in the Corporation's Certificate of Incorporation, and subject to the other
provisions of these Bylaws, each stockholder shall be entitled to one vote on
each matter, in person or by proxy, for each share of the Corporation's capital
stock that has voting power and that is held by such stockholder. No proxy
shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed appointment of proxy shall be
irrevocable if the appointment form states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power.
2.10. Required Vote
When a quorum is present at any meeting of stockholders, all matters
shall be determined, adopted and approved by the affirmative vote (which need
not be by ballot) of the holders of a majority of the shares present in person
or represented by proxy at the meeting and entitled to vote with respect to the
matter, unless the proposed action is one upon which, by express provision of
any statute or of the Corporation's Certificate of Incorporation, a different
vote is specified and required, in which case such express provision shall
govern and control with respect to that vote on that matter. Where a separate
vote by a class or classes is required,
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the affirmative vote of the holders of a majority of the shares of such class or
classes present in person or represented by proxy at the meeting shall be the
act of such class. Notwithstanding the foregoing, directors shall be elected by
a plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote on the election of directors.
2.11. Action Without a Meeting
Any action required or permitted to be taken at a stockholders'
meeting may be taken without a meeting, without prior notice and without a vote,
if the action is taken by each person who would be entitled to vote at a meeting
at which all shares entitled to vote were present and voted. The action must be
evidenced by one or more written consents describing the action taken, signed by
each of the stockholders entitled to take action without a meeting, and
delivered to the Corporation in the manner prescribed by the Delaware General
Corporation Law for inclusion in the minute book. No consent shall be effective
to take the corporate action specified unless each of the consents required to
take such action are delivered to the Corporation within sixty days of the
delivery of the earliest-dated consent.
3. DIRECTORS
3.1. Powers
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors, which may exercise all such
powers of the Corporation and do all such lawful acts and things, subject to any
limitation set forth in the Corporation's Certificate of Incorporation or as
otherwise may be provided in the Delaware General Corporation Law.
3.2. Number and Election
The number of directors which shall constitute the whole Board of
Directors shall not be fewer than one nor more than fifteen. The Board of
Directors shall consist of six directors on September 26, 2000, the date these
Bylaws shall become effective. Thereafter, within the limits above specified,
the number of directors shall be determined by resolution of the Board of
Directors. The directors shall be elected at the annual meeting of the
stockholders, except as provided in Section 3.3 of this Article, and each
director elected shall hold office until his successor is elected and qualified
or until his earlier death, resignation or removal. Directors need not be
stockholders.
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3.3. Vacancies
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 the affirmative vote of a
majority of the directors then in office, although fewer than a quorum, or by a
sole remaining director. 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 Corporation's Certificate of Incorporation, vacancies and newly created
directorships of such class or classes or series may be filled by the
affirmative vote of a majority of the directors elected by such class or classes
or series thereof then in office, or by a sole remaining director so elected.
Each director so chosen shall hold office until the next election of directors
of the class to which such director was appointed, and until such director's
successor is elected and qualified, or until the director's earlier death,
resignation or removal. In the event that one or more directors resign from the
Board of Directors, effective at a future date, a majority of the directors then
in office, including those who have so resigned, shall have 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 until the next election of directors, and until such director's successor
is elected and qualified, or until the director's earlier death, resignation or
removal.
3.4. Meetings
3.4.1. Regular Meetings
Regular meetings of the Board of Directors may be held without notice
at such time and at such place as shall from time to time be determined by the
Board of Directors.
3.4.2 Special Meetings
Special meetings of the Board of Directors may be called by the
Chairperson or President on one day's notice to each director, either personally
or by telephone, express delivery service (so that the scheduled delivery date
of the notice is at least one day in advance of the meeting), telegram or
facsimile transmission, and on five days' notice by mail (effective upon deposit
of such notice in the mail). The notice need not describe the purpose of a
special meeting.
3.4.3. Telephone Meetings
Members of the Board of Directors may participate in a meeting of the
Board of Directors by any communication by means of which all participating
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directors can simultaneously hear each other during the meeting. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
3.4.4. Action Without Meeting
Any action required or permitted to be taken at any meeting of the
Board of Directors may be taken without a meeting if the action is taken by all
members of the Board of Directors The action must be evidenced by one or more
written consents describing the action taken, signed by each director, and
delivered to the Corporation for inclusion in the minute book.
3.4.5. Waiver of Notice of Meeting
A director may waive any notice required by statute, the Corporation's
Certificate of Incorporation or these Bylaws before or after the date and time
stated in the notice. Except as set forth below, the waiver must be in writing,
signed by the director entitled to the notice, and delivered to the Corporation
for inclusion in the minute book. Notwithstanding the foregoing, a director's
attendance at or participation in a meeting waives any required notice to the
director of the meeting unless the director at the beginning of the meeting
objects to holding the meeting or transacting business at the meeting and does
not thereafter vote for or assent to action taken at the meeting.
3.5. Quorum and Vote at Meetings
At all meetings of the Board of Directors, a quorum of the Board of
Directors consists of a majority of the total number of directors prescribed
pursuant to Section 3.2 of these Bylaws. The vote of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or by the Corporation's Certificate of Incorporation or by these Bylaws.
3.6. Committees of Directors
The Board of Directors may designate one or more committees, each
committee to consist of one or more directors. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the committee. If a
member of a committee shall be absent from any meeting, or disqualified from
voting thereat, the remaining member or members present and not disqualified
from voting, whether or not such member or members constitute a quorum, may, by
unanimous
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vote, appoint another member of the Board of Directors to act at the meeting in
the place of such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation; but no such committee
shall have the power or authority in reference to approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the
Delaware General Corporation Law to be submitted to stockholders for approval,
or adopting or amending or repealing any Bylaw; and unless the resolution
designating the committee, these Bylaws or the Corporation's Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors, when required. Unless otherwise
specified in the Board of Directors resolution appointing the Committee, all
provisions of the Delaware General Corporation Law and these Bylaws relating to
meetings, action without meetings, notice (and waiver thereof), and quorum and
voting requirements of the Board of Directors apply, as well, to such committees
and their members.
3.7. Compensation of Directors
The Board of Directors shall have the authority to fix the
compensation of directors. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
4. OFFICERS
4.1. Positions
The officers of the Corporation shall be a Chairperson, a President, a
Secretary and a Treasurer, and such other officers as the Board of Directors (or
an officer authorized by the Board of Directors) from time to time may appoint,
including one or more Vice Chairpersons, Executive Vice Presidents, Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Each such officer
shall exercise such powers and perform such duties as shall be set forth below
and such other powers and duties as from time to time may be specified by the
Board of Directors or by any officer(s) authorized by the Board of Directors to
prescribe the duties of such other officers. Any number of offices may be held
by the same person,
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except that in no event shall the President and the Secretary be the same
person. As set forth below, each of the Chairperson, President and/or any Vice
President may execute bonds, mortgages and other documents, except where
required or permitted by law to be otherwise executed and except where the
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the Corporation.
4.2. Chairperson
The Chairperson shall (when present) preside at all meetings of the
Board of Directors and stockholders, and shall ensure that all orders and
resolutions of the Board of Directors and stockholders are carried into effect.
The Chairperson may execute bonds, mortgages and other contracts, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the Corporation.
4.3. President
Subject to the authority of the Board of Directors, the President
shall direct and supervise the business, operations, and affairs of the
Corporation and perform such other duties as may be assigned him from time to
time by the Board of Directors. In the absence of the Chairperson, or if no
Chairperson shall have been appointed, the President shall (when present)
preside at all meetings of the Board of Directors and stockholders, and shall
ensure that all orders and resolutions of the Board of Directors and
stockholders are carried into effect. The President may execute bonds,
mortgages and other contracts, except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation.
4.4. Vice President
In the absence of the President or in the event of the President's
inability or refusal to act, the Vice President (or in the event there shall be
more than one Vice President, the Vice Presidents in the order designated, or in
the absence of any designation, then in the order of their election) shall
perform the duties of the President, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the President.
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4.5. Secretary
The Secretary shall have responsibility for preparation of minutes of
meetings of the Board of Directors and of the stockholders and for
authenticating records of the Corporation. The Secretary shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of
the Board of Directors. The Secretary or an Assistant Secretary may also attest
all instruments signed by any other officer of the Corporation.
4.6. Assistant Secretary
The Assistant Secretary, or if there shall be more than one, the
Assistant Secretaries in the order determined by the Board of Directors (or if
there shall have been no such determination, then in the order of their
election), shall, in the absence of the Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary.
4.7. Treasurer
The Treasurer shall be the chief financial officer of the Corporation
and shall have responsibility for the custody of the corporate funds and
securities and shall see to it that full and accurate accounts of receipts and
disbursements are kept in books belonging to the Corporation. The Treasurer
shall render to the Chairperson, the President, and the Board of Directors, upon
request, an account of all financial transactions and of the financial condition
of the Corporation.
4.8. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board of Directors (or if
there shall have been no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer.
4.9. Term of Office
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by or at the direction of the Board of Directors
may be removed at any time, with or without cause, by the affirmative vote of a
majority of the Board of Directors.
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4.10. Compensation
The compensation of officers of the Corporation shall be fixed by the
Board of Directors or by any officer(s) authorized by the Board of Directors to
prescribe the compensation of such other officers.
4.11. Fidelity Bonds
The Corporation may secure the fidelity of any or all of its officers
or agents by bond or otherwise.
5. CAPITAL STOCK
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 that some or all
of any or all classes or series of the Corporation's capital 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
(representing the number of shares registered in certificate form) signed in the
name of the Corporation by the Chairperson, the President or any Vice President,
and by the Treasurer, Secretary or any Assistant Treasurer or Assistant
Secretary of the Corporation. Any or all of the signatures on the certificate
may be by facsimile. In case any officer, transfer agent or registrar whose
signature or facsimile signature appears on 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 such person were
such officer, transfer agent or registrar at the date of issue.
5.2. Lost Certificates
The Board of Directors, Chairperson, President or Secretary may direct
a new certificate of stock to be issued in place of any certificate theretofore
issued by the Corporation and alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the person claiming that the
certificate of stock has been lost, stolen or destroyed. When authorizing such
issuance of a new certificate, the Board of Directors or any such officer may,
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or
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certificates, or such owner's legal representative, to advertise the same in
such manner as the Board of Directors or such officer shall require and/or to
give the Corporation a bond or indemnity, in such sum or on such terms and
conditions as the Board of Directors or such officer may direct, as indemnity
against any claim that may be made against the Corporation on account of the
certificate alleged to have been lost, stolen or destroyed or on account of the
issuance of such new certificate or uncertificated shares.
5.3. Record Date
5.3.1. Actions by Stockholders
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, 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 by the Board of Directors, and
which record date shall not be more than sixty days nor less than ten days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be the close of business on the day
next preceding the day on which notice is given, or, if 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,
unless the Board of Directors fixes a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, 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 by the Board of
Directors, and which record date shall not be more than ten days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the Delaware General Corporation Law, 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 in the manner prescribed by Section 213(b)
of the Delaware General Corporation Law. If no record date has been fixed by the
Board of Directors and prior action by the Board of Directors is required by the
Delaware General Corporation Law, the record date for determining stockholders
entitled to consent to corporate action in writing
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without a meeting shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
5.3.2. Payments
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 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.
5.4. Stockholders of Record
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, to
receive notifications, to vote as such owner, and to exercise all the rights and
powers of an owner. The Corporation 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 may be provided by the Delaware General Corporation Law.
6. INDEMNIFICATION; INSURANCE
6.1. Authorization of Indemnification
Each person who was or is a party or is threatened to be made a party
to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
by or in the right of the Corporation or otherwise (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 a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee,
partner (limited or general) or agent of another corporation or of a
partnership, joint venture, limited liability company, trust or other
enterprise, including service with respect to an employee benefit plan, shall be
(and shall be deemed to have a contractual right to be) indemnified and held
harmless by the Corporation (and any successor to the Corporation by merger or
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otherwise) to the fullest extent authorized by, and subject to the conditions
and (except as provided herein) procedures set forth in the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but any such
amendment shall not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar as such
amendment limits or prohibits the indemnification rights that said law permitted
the Corporation to provide prior to such amendment), against all expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA taxes
or penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith; provided, however, that the
--------- -------
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person (except
for a suit or action pursuant to Section 6.2 hereof) only if such proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation.
Persons who are not directors or officers of the Corporation and are not so
serving at the request of the Corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the Board of
Directors of the Corporation. The indemnification conferred in this Section 6.1
also shall include the right to be paid by the Corporation (and such successor)
the expenses (including attorneys' fees) incurred in the defense of or other
involvement in any such proceeding in advance of its final disposition;
provided, however, that, if and to the extent the Delaware General Corporation
--------- -------
Law requires, the payment of such expenses (including attorneys' fees) incurred
by a director or officer in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking by or on
behalf of such director or officer to repay all amounts so paid in advance if it
shall ultimately be determined that such director or officer is not entitled to
be indemnified under this Section 6.1 or otherwise; and provided further, that,
-------- -------
such expenses incurred by other employees and agents may be so paid in advance
upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
6.2. Right of Claimant to Bring Action Against the Corporation
If a claim under Section 6.1 is not paid in full by the Corporation
within sixty days after a written claim has been received by the Corporation,
the claimant may at any time thereafter bring an action against the Corporation
to recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of prosecuting
such action. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the
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Corporation to indemnify the claimant for the amount claimed or is otherwise not
entitled to indemnification under Section 6.1, but the burden of proving such
defense shall be on the Corporation. The failure of the Corporation (in the
manner provided under the Delaware General Corporation Law) to have made a
determination prior to or after 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 the Delaware General
Corporation Law shall not be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. Unless
otherwise specified in an agreement with the claimant, an actual determination
by the Corporation (in the manner provided under the Delaware General
Corporation Law) after the commencement of such action that the claimant has not
met such applicable standard of conduct shall not be a defense to the action,
but shall create a presumption that the claimant has not met the applicable
standard of conduct.
6.3. Non-exclusivity
The rights to indemnification and advance payment of expenses provided
by Section 6.1 hereof shall not be deemed exclusive of any other rights to which
those seeking indemnification and advance payment of expenses may be entitled
under any Bylaw, 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.
6.4. Survival of Indemnification
The indemnification and advance payment of expenses and rights thereto
provided by, or granted pursuant to, Section 6.1 hereof shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee, partner or agent and shall inure to the
benefit of the personal representatives, heirs, executors and administrators of
such person.
6.5. Insurance
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, against any liability asserted against such person or
incurred by such person in any such capacity, or arising out of such person's
status as such, and related expenses,
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whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of the Delaware General Corporation
Law.
7. GENERAL PROVISIONS
7.1. Inspection of Books and Records
Any stockholder, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent shall be the person who seeks the
right to inspection, the demand under oath shall be accompanied by a power of
attorney or such other writing which authorizes the attorney or other agent to
so act on behalf of the stockholder. The demand under oath shall be directed
to the Corporation at its registered office or at its principal place of
business.
7.2. Dividends
The Board of Directors may declare dividends upon the capital stock of
the Corporation, subject to the provisions of the Corporation's Certificate of
Incorporation and the laws of the State of Delaware.
7.3. Reserves
The Board of Directors of the Corporation may set apart, out of the
funds of the Corporation available for dividends, a reserve or reserves for any
proper purpose and may abolish any such reserve.
7.4. Execution of Instruments
All checks, drafts or other orders for the payment of money, and
promissory 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.
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7.5. Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the
Board of Directors.
7.6. Seal
The Corporation shall not have a corporate seal. All instruments that
are executed on behalf of the Corporation which are acknowledged and which
effect an interest in real estate shall be executed by the Chairperson, the
President or any Vice President and by the Secretary, the Treasurer, any
Assistant Secretary or any Assistant Treasurer, except where required or
permitted by law to be otherwise executed and except where the execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent of the Corporation.
* * * * * * *
The foregoing Amended and Restated Bylaws were adopted by the Board of
Directors on September 26, 2000.
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