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Exhibit 3.5
FORM OF SECOND AMENDED AND RESTATED
BYLAWS
OF
MEDIA METRIX, INC.
ARTICLE I
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of
the corporation in the State of Delaware shall be in the City of Dover, County
of Kent, and the name of its registered agent shall be United Corporate
Services, Inc.
SECTION 1.02. 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 the business of the
corporation may require.
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ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. PLACE OF MEETING. All meetings of stockholders
for the election of directors shall be held at such place, either within or
without the State of Delaware, as shall be designated from time to time by the
Board of Directors and stated in the notice of the meeting.
SECTION 2.02. ANNUAL MEETING. The annual meeting of
stockholders shall be held 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.
SECTION 2.03. VOTING LIST. The officer who has charge of the
stock ledger of the corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the 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 10 days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice, or if not so specified, at the place where the meeting is to be held.
The 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.
SECTION 2.04. SPECIAL MEETING. Special meetings of the
stockholders, for any purpose or purposes, unless otherwise prescribed by
statute or by the Certificate of Incorporation, may be called by the Chairman
of the Board of Directors or by the President of the corporation or by the
Board of Directors or by written order of a majority of the directors. Such
request or order shall state the purposes of the proposed meeting. The Chairman
of the Board of Directors or the President of the corporation or directors so
calling any such meeting shall fix the time and any place, either within or
without the State of Delaware, as the place for holding such meeting.
SECTION 2.05. NOTICE OF MEETING. Written notice of the
annual, and each special meeting of stockholders, stating the time, place, and
purpose or purposes thereof, shall be given to each stockholder entitled to
vote thereat, not less than 10 nor more than 60 days before the meeting.
SECTION 2.06. QUORUM. The holders of a majority of the
shares of the corporation's capital stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a
quorum at any meeting of stockholders for the transaction of business, except
as otherwise provided by statute or by the Certificate of Incorporation.
Notwithstanding the other provisions of the Certificate of Incorporation or
these Bylaws, the holders of a majority of the shares of the corporation's
capital stock entitled to vote thereat, present in person or represented by
proxy, whether or not a quorum is present, shall have power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. If the adjournment is
for more than 30 days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
SECTION 2.07. VOTING. When a quorum is present at any
meeting of the stockholders, the vote of the holders of a majority of the
shares of the corporation's capital stock having voting power present in person
or represented by proxy shall decide any question brought before such
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meeting, unless the question is one upon which, by express provision of the
statutes, of the Certificate of Incorporation or of these Bylaws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question. Every stockholder having the right to vote shall
be entitled to vote in person, or by proxy appointed by an instrument in
writing subscribed by such stockholder, bearing a date not more than three
years prior to voting, unless such instrument provides for a longer period, and
filed with the Secretary of the corporation before, or at the time of, the
meeting.
If such instrument shall designate two or more persons to act
as proxies, unless such instrument shall provide the contrary, a majority of
such persons present at any meeting at which their powers thereunder are to be
exercised shall have and may exercise all the powers of voting or giving
consents thereby conferred, or if only one be present, then such powers may be
exercised by that one; or, if an even number attend and a majority do not agree
on any particular issue, each proxy so attending shall be entitled to exercise
such powers in respect of the same portion of the shares as he is of the
proxies representing such shares.
SECTION 2.08. VOTING OF STOCK OF CERTAIN HOLDERS. Shares of
the corporation's capital stock standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent, or proxy as the
Bylaws of such corporation may prescribe, or in the absence of such provision,
as the Board of Directors of such corporation may determine. Shares standing in
the name of a deceased person may be voted by the executor or administrator of
such deceased person, either in person or by proxy. Shares standing in the
name of a guardian, conservator, or trustee may be voted by such fiduciary,
either in person or by proxy, but no such fiduciary shall be entitled to vote
shares held in such fiduciary capacity without a transfer of such shares into
the name of such fiduciary. Shares standing in the name of a receiver may be
voted by such receiver. A stockholder whose shares are pledged shall be
entitled to vote such shares, unless in the transfer by the pledgor on the
books of the corporation, he has expressly empowered the pledgee to vote
thereon, in which case only the pledgee, or his proxy, may represent the stock
and vote thereon.
SECTION 2.09. TREASURY STOCK. The corporation shall not
vote, directly or indirectly, shares of its own capital stock owned by it; and
such shares shall not be counted in determining the total number of outstanding
shares of the corporation's capital stock.
SECTION 2.10. FIXING RECORD DATE. The Board of Directors may
fix in advance a date, which shall not be more than 60 days nor less than 10
days preceding the date of any meeting of stockholders, nor more than 60 days
preceding the date for payment of any dividend or distribution, or the date for
the allotment of rights, or the date when any change, or conversion or exchange
of capital stock shall go into effect, or a date in connection with obtaining a
consent, as a record date for the determination of the stockholders entitled to
notice of, and to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such dividend or distribution, or to receive
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and
in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed, shall be entitled to such notice
of, and to vote at, any such meeting and any adjournment thereof, or to receive
payment of such dividend or distribution, or to receive such allotment of
rights, or to exercise such rights, or to give such consent, as the case may
be, notwithstanding any transfer of any stock on the books of the corporation
after any such record date fixed as aforesaid.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. POWERS. The business and affairs of the
corporation shall be managed by its Board of Directors, which may exercise all
such powers of the corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
SECTION 3.02. NUMBER, ELECTION AND TERM. The number of
directors that shall constitute the whole Board of Directors shall be not less
than one. Such number of directors shall from time to time be fixed and
determined by the directors and shall be set forth in the notice of any meeting
of stockholders held for the purpose of electing directors. The Board of
Directors will be divided into three classes which will serve staggered three
year terms as set forth in Article EIGHTH of the Certificate of Incorporation.
The directors shall be elected at the annual meeting of stockholders in the
manner provided in Article EIGHTH of the Certificate of Incorporation, except
as provided in Section 3.03 hereof, and each director elected shall hold office
until his successor shall be elected and shall qualify. Directors need not be
residents of Delaware or stockholders of the corporation.
SECTION 3.03. VACANCIES, ADDITIONAL DIRECTORS, AND REMOVAL
FROM OFFICE. If any vacancy occurs in the Board of Directors caused by death,
resignation, retirement, disqualification, or removal from office of any
director, or otherwise, or if any new directorship is created by an increase in
the authorized number of directors, a majority of the directors then in office,
though less than a quorum, or a sole remaining director, may choose a successor
or fill the newly created directorship; and a director so chosen shall hold
office until the next election and until his or her successor shall be duly
elected and shall qualify, unless sooner displaced.
Notwithstanding the foregoing, if the vacancy is caused by the
death, resignation, retirement, disqualification, or removal from office of any
director who was a Media Metrix Designee (as hereinafter defined), a majority
of the remaining Media Metrix Designees then in office, though less than a
quorum, or the sole remaining Media Metrix Designee, shall choose his or her
successor, and if the vacancy is caused by the death, resignation, retirement,
disqualification, or removal from office of any director who was a Jupiter
Designee (as hereinafter defined), a majority of the remaining Jupiter
Designees then in office, though less than a quorum, or the sole remaining
Jupiter Designee, shall choose his or her successor. The term "Media Metrix
Designee" shall mean any person designated by the corporation to serve as a
member of the Board of Directors immediately following the effective time of
the merger of MMX Acquisition Corp. with Jupiter Communications, Inc.
("Jupiter") and any successor (or any subsequent successor) to such person who
was designated by a majority of the Media Metrix Designees then in office,
though less than a quorum, or a sole remaining Media Metrix Designee. The term
"Jupiter Designee" shall mean any person designated by Jupiter to serve as a
member of the Board of Directors immediately following the effective time of
the merger of MMX Acquisition Corp. with Jupiter and any successor (or any
subsequent successor) to such person who was designated by a majority of the
Jupiter Designees then in office, though less than a quorum, or a sole
remaining Jupiter Designee.
Directors may only be removed in accordance with Article
EIGHTH of the Certificate of Incorporation.
SECTION 3.04. REGULAR MEETING. A regular meeting of the
Board of Directors shall be held each year, without other notice than this
Bylaw, at the place of, and immediately following,
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the annual meeting of stockholders; and other regular meetings of the Board of
Directors shall be held each year, at such time and place as the Board of
Directors may provide, by resolution, either within or without the State of
Delaware, without other notice than such resolution.
SECTION 3.05. SPECIAL MEETING. A special meeting of the
Board of Directors may be called by the Chairman of the Board of Directors or
by the President of the corporation and shall be called by the Secretary on the
written request of any two directors. The Chairman or President so calling, or
the directors so requesting, any such meeting shall fix the time and any place,
either within or without the State of Delaware, as the place for holding such
meeting.
SECTION 3.06. NOTICE OF SPECIAL MEETING. Written notice of
special meetings of the Board of Directors shall be given to each director in a
manner reasonably calculated to reach such director at least 48 hours prior to
the time of such meeting. Any director may waive notice of any meeting. The
attendance of a director at any meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the purpose of
objecting to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor the
purpose of, any special meeting of the Board of Directors need be specified in
the notice or waiver of notice of such meeting, except that notice shall be
given of any proposed amendment to the Bylaws if it is to be adopted at any
special meeting or with respect to any other matter where notice is required by
statute.
SECTION 3.07. QUORUM. A majority of the Board of Directors
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors, and the act 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, by the Certificate
of Incorporation or by these Bylaws. If a quorum shall not be present at any
meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 3.08. ACTION WITHOUT MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors, or
of any committee thereof as provided in Article IV of these Bylaws, may be
taken without a meeting, if a written consent thereto is signed by all members
of the Board of Directors or of such committee, as the case may be, and such
written consent is filed with the minutes of proceedings of the Board of
Directors or such committee.
SECTION 3.09. COMPENSATION. Directors, as such, shall not be
entitled to any stated salary for their services unless voted by the
stockholders or the Board of Directors; but by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board of Directors or any
meeting of a committee of directors. No provision of these Bylaws shall be
construed to preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEE OF DIRECTORS
SECTION 4.01. DESIGNATION, POWERS AND NAME.
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The Board of Directors may, by resolution passed by a majority
of the whole Board of Directors, designate one or more committees, including,
if they shall so determine, an Executive Committee, each such committee to
consist of two or more of the directors of the corporation. The committee
shall have and may exercise such of the powers of the Board of Directors in the
management of the business and affairs of the corporation as may be provided in
such resolution. The committee may authorize the seal of the corporation to be
affixed to all papers that may require it. 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 such committee. In
the absence or disqualification of any member of such committee or committees,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Such committee or committees shall
have such name or names and such limitations of authority as may be determined
from time to time by resolution adopted by the Board of Directors.
SECTION 4.02. MINUTES. Each committee of directors shall
keep regular minutes of its proceedings and report the same to the Board of
Directors when required.
SECTION 4.03. COMPENSATION. Members of special or standing
committees may be allowed compensation for attending committee meetings, if the
Board of Directors shall so determine.
ARTICLE V
NOTICE
SECTION 5.01. METHODS OF GIVING NOTICE. Whenever under the
provisions of applicable statutes, the Certificate of Incorporation or these
Bylaws, notice is required to be given to any director, member of any
committee, or stockholder, such notice shall be in writing and delivered
personally or mailed to such director, member, or stockholder; provided that in
the case of a director or a member of any committee such notice may be given by
telephone, facsimile or telegram. If mailed, notice to a director, member of a
committee, or stockholder shall be deemed to be given when deposited in the
United States mail first class in a sealed envelope, with postage thereon
prepaid, addressed, in the case of a stockholder, to the stockholder at the
stockholder's address as it appears on the records of the corporation or, in
the case of a director or a member of a committee, to such person at his
business address. If sent by telegraph, notice to a director or member of a
committee shall be deemed to be given when the telegram, so addressed, is
delivered to the telegraph company. If sent by facsimile, notice to director
or member of a committee shall be deemed given when sender receives
confirmation of receipt of the facsimile by the other party.
SECTION 5.02. WRITTEN WAIVER. Whenever any notice is
required to be given under the provisions of an applicable statute, the
Certificate of Incorporation, or these Bylaws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VI
OFFICERS
SECTION 6.01. OFFICERS. The officers of the corporation
shall be a Chairman of the Board of Directors and a Vice Chairman of the Board
of Directors (if such offices are created by the Board of Directors), a Chief
Executive Officer (if such office is created by the Board of Directors) and a
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President, one or more Vice Presidents, any one or more of which may be
designated Executive Vice President or Senior Vice President, a Secretary and a
Treasurer. The Board of Directors may appoint such other officers and agents,
including Assistant Vice Presidents, Assistant Secretaries, and Assistant
Treasurers, in each case as the Board of Directors shall deem necessary, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined by the Board of Directors. Any two
or more offices may be held by the same person. No officer shall execute,
acknowledge, verify or countersign any instrument on behalf of the corporation
in more than one capacity, if such instrument is required by law, by these
Bylaws or by any act of the corporation to be executed, acknowledged, verified,
or countersigned by two or more officers. The Chairman and Vice Chairman of
the Board of Directors shall be elected from among the directors. With the
foregoing exceptions, none of the other officers need be a director, and none
of the officers need be a stockholder of the corporation.
SECTION 6.02. ELECTION AND TERM OF OFFICE. The officers of
the corporation shall be elected annually by the Board of Directors at its
first regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently possible. Each officer shall hold office until his
successor shall have been chosen and shall have qualified or until his death or
the effective date of his resignation or removal, or until he shall cease to be
a director in the case of the Chairman and the Vice Chairman.
SECTION 6.03. REMOVAL AND RESIGNATION. Any officer or agent
elected or appointed by the Board of Directors may be removed without cause by
the affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the corporation. Any such resignation shall take effect at the date
of the receipt of such notice or at any later time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
SECTION 6.04. VACANCIES. Any vacancy occurring in any office
of the corporation by death, resignation, removal, or otherwise, may be filled
by the Board of Directors for the unexpired portion of the term.
SECTION 6.05. SALARIES. The salaries of all officers and
agents of the corporation shall be fixed by the Board of Directors or pursuant
to its direction; and no officer shall be prevented from receiving such salary
by reason of his also being a director.
SECTION 6.06. CHAIRMAN OF THE BOARD. The Chairman of the
Board of Directors (if such office is created by the Board of Directors) shall
preside at all meetings of the Board of Directors or of the stockholders of the
corporation. The Chairman shall formulate and submit to the Board of Directors
or the Executive Committee matters of general policy for the corporation and
shall perform such other duties as usually appertain to the office or as may be
prescribed by the Board of Directors or the Executive Committee.
SECTION 6.07. VICE CHAIRMAN OF THE BOARD. The Vice Chairman
of the Board of Directors (if such office is created by the Board of Directors)
shall, in the absence or disability of the Chairman of the Board of Directors,
perform the duties and exercise the powers of the Chairman of the Board of
Directors. The Vice Chairman shall perform such other duties as from time to
time may be prescribed by the Board of Directors or the Executive Committee or
assigned by the Chairman of the Board of Directors.
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SECTION 6.08. CHIEF EXECUTIVE OFFICER. Should the Board of
Directors create the independent position of Chief Executive Officer, the Chief
Executive Officer, subject to the control of the Board of Directors, shall in
general supervise and control the business and affairs of the corporation. In
the absence of the Chairman of the Board of Directors or the Vice Chairman of
the Board of Directors (if such offices are created by the Board of Directors),
the Chief Executive Officer shall preside at all meetings of the Board of
Directors and of the stockholders. He may also preside at any such meeting
attended by the Chairman or Vice Chairman of the Board of Directors if he is so
designated by the Chairman, or in the Chairman's absence by the Vice Chairman.
He shall have the power to appoint and remove subordinate
officers, agents and employees, except those elected or appointed by the Board
of Directors. The Chief Executive Officer shall keep the Board of Directors
and the Executive Committee fully informed and shall consult them concerning
the business of the corporation. He may sign with the Secretary or any other
officer of the corporation thereunto authorized by the Board of Directors,
certificates for shares of the corporation and any deeds, bonds, mortgages,
contracts, checks, notes, drafts, or other instruments that the Board of
Directors has authorized to be executed, except in cases where the signing and
execution thereof has been expressly delegated by these Bylaws or by the Board
of Directors to some other officer or agent of the corporation, or shall be
required by law to be otherwise executed. He shall vote, or give a proxy to
any other officer of the corporation to vote, all shares of stock of any other
corporation standing in the name of the corporation and in general he shall
perform all other duties normally incident to the office of Chief Executive
Officer and such other duties as may be prescribed by the stockholders, the
Board of Directors, or the Executive Committee from time to time.
SECTION 6.09. PRESIDENT. If the Board of Directors does not
create the independent position of Chief Executive Officer, the President shall
be the Chief Executive Officer of the corporation, subject to the control of
the Board of Directors, and shall have all of the powers of the Chief Executive
Officer as set forth in Section 6.08. In addition, the President shall also be
the Chief Operating Officer of the corporation and shall report directly to the
Chief Executive Officer, if the Board of Directors creates such a position.
The President shall perform such other duties as from time to time are assigned
to him by the Chief Executive Officer, the Board of Directors or the Executive
Committee.
SECTION 6.10. VICE PRESIDENTS. In the absence of the Chief
Executive Officer and/or the President, or in the event of his inability or
refusal to act, the Executive Vice President (or in the event there shall be no
Vice President designated Executive Vice President, any Vice President
designated by the Board of Directors) shall perform the duties and exercise the
powers of the Chief Executive Officer and/or the President. Any Vice President
may sign, with the Secretary or Assistant Secretary, certificates for shares of
the corporation. The Vice Presidents shall perform such other duties as from
time to time may be assigned to them by the Chief Executive Officer, the
President, the Board of Directors or the Executive Committee.
SECTION 6.11. SECRETARY. The Secretary shall (a) keep the
minutes of the meetings of the stockholders, the Board of Directors and
committees of directors; (b) see that all notices are duly given in accordance
with the provisions of these Bylaws and as required by law; (c) be custodian of
the corporate records and of the seal of the corporation, and see that the seal
of the corporation or a facsimile thereof is affixed to all certificates for
shares prior to the issue thereof and to all documents, the execution of which
on behalf of the corporation under its seal is duly authorized in accordance
with the provisions of these Bylaws; (d) keep or cause to be kept a register of
the post office address of each stockholder which shall be furnished by such
stockholder; (e) sign with the Chief Executive Officer, the President, or an
Executive Vice President or Vice President, certificates for shares of the
corporation, the issue of which shall have been authorized by resolution of the
Board of Directors; (f) have general charge
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of the stock transfer books of the corporation; and (g) in general, perform all
duties normally incident to the office of Secretary and such other duties as
from time to time may be assigned to him by the Chief Executive Officer, the
President, the Board of Directors or the Executive Committee.
SECTION 6.12. TREASURER. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board of Directors
shall determine. He shall (a) have charge and custody of and be responsible
for all funds and securities of the corporation; (b) receive and give receipts
for moneys due and payable to the corporation from any source whatsoever and
deposit all such moneys in the name of the corporation in such banks, trust
companies, or other depositories as shall be selected in accordance with the
provisions of Section 7.03 of these Bylaws; (c) prepare, or cause to be
prepared, for submission at each regular meeting of the Board of Directors, at
each annual meeting of the stockholders, and at such other times as may be
required by the Board of Directors, the Chief Executive Officer, the President
or the Executive Committee, a statement of financial condition of the
corporation in such detail as may be required; and (d) in general, perform all
the duties incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the Chief Executive Officer, the
President, the Board of Directors or the Executive Committee.
SECTION 6.13. ASSISTANT SECRETARY AND TREASURER. The
Assistant Secretaries and Assistant Treasurers shall, in general, perform such
duties as shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the Chief Executive Officer, the President, the Board of
Directors, or the Executive Committee. The Assistant Secretaries and Assistant
Treasurers shall, in the absence of the Secretary or Treasurer, respectively,
perform all functions and duties which such absent officers may delegate, but
such delegation shall not relieve the absent officer from the responsibilities
and liabilities of his office. The Assistant Secretaries may sign, with the
Chief Executive Officer, the President or a Vice President, certificates for
shares of the corporation, the issue of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Treasurers shall
respectively, if required by the Board of Directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
Board of Directors shall determine.
ARTICLE VII
CONTRACTS, CHECKS AND DEPOSITS
SECTION 7.01. CONTRACTS. Subject to the provisions of
Section 6.01, the Board of Directors may authorize any officer, officers,
agent, or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 7.02. CHECKS. All checks, demands, drafts, or other
orders for the payment of money, notes, or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or
officers or such agent or agents of the corporation, and in such manner, as
shall be determined by the Board of Directors.
SECTION 7.03. DEPOSITS. All funds of the corporation not
otherwise employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies, or other depositories as the Board
of Directors may select.
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ARTICLE VIII
CERTIFICATES OF STOCK
SECTION 8.01. ISSUANCE. Each stockholder of this corporation
shall be entitled to a certificate or certificates showing the number of shares
of capital stock registered in his name on the books of the corporation. The
certificates shall be in such form as may be determined by the Board of
Directors, shall be issued in numerical order and shall be entered in the books
of the corporation as they are issued. They shall exhibit the holder's name
and number of shares and shall be signed by the Chief Executive Officer, the
President or a Vice President and by the Secretary or an Assistant Secretary.
If any certificate is countersigned (1) by a transfer agent other than the
corporation or any employee of the corporation, or (2) by a registrar other
than the corporation or any employee of the corporation, any other signature on
the certificate may be a facsimile. If the corporation shall be authorized to
issue more than one class of stock or more than one series of any class, the
designations, preferences, and relative participating, optional, or other
special rights of each class of stock or series thereof and the qualifications,
limitations, or restrictions of such preferences and rights shall be set forth
in full or summarized on the face or back of the certificate which the
corporation shall issue to represent such class of stock; provided that, except
as otherwise provided by statute, in lieu of the foregoing requirements there
may be set forth on the face or back of the certificate which the corporation
shall issue to represent such class or series of stock, a statement that the
corporation will furnish to each stockholder who so requests the designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations, or
restrictions of such preferences and rights. All certificates surrendered to
the corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and canceled, except that in the case of a lost, stolen, destroyed,
or mutilated certificate a new one may be issued therefor upon such terms and
with such indemnity, if any, to the corporation as the Board of Directors may
prescribe. Certificates shall not be issued representing fractional shares of
stock.
SECTION 8.02. LOST CERTIFICATES. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the corporation alleged to
have been lost, stolen, or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require (1) the owner of such lost, stolen, or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require, (2) such owner to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate or certificates
alleged to have been lost, stolen, or destroyed, or (3) both.
SECTION 8.03. TRANSFERS. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment, or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books. Transfers of shares shall be made only
on the books if the corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney and filed with the Secretary
of the corporation or the Transfer Agent.
SECTION 8.04. REGISTERED STOCKHOLDERS. The corporation shall
be entitled to treat the holder of record of any share or shares of the
corporation's capital stock as the holder in fact thereof and, accordingly,
shall not be bound to recognize any equitable or other claim to or interest in
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such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
<PAGE> 12
ARTICLE IX
DIVIDENDS
SECTION 9.01. DECLARATION. Dividends with respect to the
shares of the corporation's capital stock, subject to the provisions of the
Certificate of Incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting, pursuant to applicable law. Dividends may be
paid in cash, in property, or in shares of capital stock, subject to the
provisions of the Certificate of Incorporation.
SECTION 9.02. RESERVE. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interest of the corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. THIRD PARTY ACTIONS. The corporation shall
indemnify any director or officer of the corporation, and may indemnify any
other person, who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
against expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or conviction, or
upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 10.02. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION.
The corporation shall indemnify any director or officer and
may indemnify any other person who was or is a party or is threatened to be
made a party to any threatened, pending, or completed action or suit by or in
the right of the corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee, or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be made in respect of
any claim, issue, or matter as
<PAGE> 13
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses as
the Court of Chancery or such other court shall deem proper.
SECTION 10.03. MANDATORY INDEMNIFICATION. To the extent that
a director, officer, employee, or agent of the corporation has been successful
on the merits or otherwise in defense of any action, suit, or proceeding
referred to in Sections 10.01 and 10.02, or in defense of any claim, issue, or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
SECTION 10.04. DETERMINATION OF CONDUCT. Any indemnification
under Section 10.01 or 10.02 of this Article X (unless ordered by a court)
shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Section 10.01 or 10.02 of this Article X. Such
determination shall be made (a) by a majority vote of directors who were not
parties to such action, suit or proceeding, even though less than a quorum, or
(b) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (c) by the stockholders.
SECTION 10.05. PAYMENT OF EXPENSES IN ADVANCE. Expenses
incurred in defending a civil or criminal action, suit, or proceeding may be
paid by the corporation in advance of the final disposition of such action,
suit, or proceeding upon receipt of an undertaking by or on behalf of the
director, officer, employee, or agent to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this Article X.
SECTION 10.06. INDEMNITY NOT EXCLUSIVE. The indemnification
and advancement of expenses provided or granted hereunder shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under the Certificate of Incorporation,
any other Bylaw, agreement, vote of stockholders, or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
SECTION 10.07. DEFINITIONS. For purposes of this Article X:
(a) "the corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger
that, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee, or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise, shall stand in the same
position under this Article X with respect to the resulting or
surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued;
(b) "other enterprises" shall include employee benefit
plans;
(c) "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan;
<PAGE> 14
(d) "serving at the request of the corporation" shall
include any service as a director, officer, employee, or agent of the
corporation that imposes duties on, or involves services by, such
director, officer, employee, or agent with respect to an employee
benefit plan, its participants or beneficiaries; and
(e) a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have
acted in a manner "not opposed to the best interests of the
corporation" as referred to in this Article X.
SECTION 10.08. CONTINUATION OF INDEMNITY. The
indemnification and advancement of expenses provided or granted hereunder
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of such a
person.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. SEAL. The corporate seal, if one is
authorized by the Board of Directors, shall have inscribed thereon the name of
the corporation, and the words "Corporate Seal, Delaware." The seal may be used
by causing it or a facsimile thereof to be impressed or affixed or otherwise
reproduced.
SECTION 11.02. BOOKS. The books of the corporation may be
kept (subject to any provision contained in the statutes) outside the State of
Delaware at the offices of the corporation, or at such other place or places as
may be designated from time to time by the Board of Directors.
ARTICLE XII
AMENDMENT
Except as provided in Article SIXTH of the Certificate of
Incorporation, these Bylaws may be altered, amended, or repealed by a majority
of the number of directors then constituting the Board of Directors at any
regular meeting of the Board of Directors without prior notice, or at any
special meeting of the Board of Directors if notice of such alteration,
amendment, or repeal be contained in the notice of such special meeting.
Notwithstanding the foregoing, the second paragraph of ARTICLE
III, Section 3.03 of these Bylaws may only be altered, amended or repealed by
the affirmative vote of 66 2/3% of the number of directors then constituting the
Board of Directors (without regard to any vacancies then existing) at any
regular meeting of the Board of Directors without prior notice, or at any
special meeting of the Board of Directors if notice of such alteration,
amendment or repeal be contained in the notice of such special meeting, or by
the stockholders of the corporation in accordance with the Certificate of
Incorporation and Bylaws of the corporation as in effect from time to time.
