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EXHIBIT 3.1
SECOND AMENDED AND RESTATED
BYLAWS
OF
BEASLEY BROADCAST GROUP, INC.
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ARTICLE I - OFFICES
Section 1. The registered office of Beasley Broadcast Group, Inc. (the
"Corporation") shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2. 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.
ARTICLE II - MEETINGS OF STOCKHOLDERS
Section 1. Place and Time of Meetings. An annual meeting of the
stockholders shall be held each year on a date and time designated by the Board
of Directors. At such meeting, the stockholders shall elect the directors of
the corporation and conduct such other business as may come before the meeting.
The time and place of the annual meeting shall be determined by the Board of
Directors. Special meetings of the stockholders, for any purpose, or purposes,
unless otherwise prescribed by statute or by the Restated Certificate of
Incorporation, may be called by the President and shall be called by the
President or the Secretary at the request in writing of a majority of the Board
of Directors, or at the request in writing of stockholders owning a majority in
amount of the entire voting power of the issued and outstanding capital stock
of the Corporation, provided, however, that if there are two vacancies in the
offices for the Class A Directors (as defined in Article III, Section 1 below),
then holders of a majority of the Class A Common Stock outstanding shall have
the right to call a special meeting of stockholders for the purpose of electing
Class A Directors to fill such vacancies. Such request shall state the purpose
or purposes of the proposed meeting. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice.
Section 2. Notice. Whenever stockholders are required or permitted to
take action at a meeting, written or printed notice of every annual or special
meeting of the
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stockholders, stating the place, date, time, and, in the case of special
meetings, the purpose or purposes, of such meeting, shall be given to each
stockholder entitled to vote at such meeting not less than 10 nor more than 60
days before the date of the meeting. All such notices shall be delivered,
either personally or by mail, by or at the direction of the Board of Directors,
the Chairman of the Board, the Chief Executive Officer, the President or the
Secretary, and if mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage prepaid and addressed to the
stockholder at his or her address as it appears on the records of the
corporation.
Section 3. Stockholders List. The officer having charge of the stock
ledger of the corporation shall make, at least 10 days before every meeting of
the stockholders, a complete list arranged in alphabetical order of the
stockholders entitled to vote at such meeting, specifying the address of 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 of the meeting 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 4. Quorum. The presence of stockholders entitled to cast at
least a majority of the votes that all stockholders are entitled to cast on a
matter to be acted upon at a meeting of the stockholders shall constitute a
quorum for the purposes of consideration and action on the matter, except as
otherwise provided by statute or by the Restated Certificate of Incorporation.
If a quorum is not present, the holders of the shares present in person or
represented by proxy at the meeting and entitled to vote thereat shall have the
power, by the affirmative vote of the holders of a majority of the voting power
represented by such shares, to adjourn the meeting to another time or place.
Unless the
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adjournment is for more than thirty days or unless a new record date is set for
the adjourned meeting, no notice of the adjourned meeting need be given to any
stockholder, provided that the time and place of the adjourned meeting were
announced at the meeting at which the adjournment was taken. At the adjourned
meeting, the corporation may transact any business which might have been
transacted at the original meeting.
Section 5. Vote Required. When a quorum is present or represented by
proxy at any meeting, the vote of a majority of the votes cast by all
stockholders entitled to vote and, if any stockholders are entitled to vote as
a class, the vote of a majority of the votes cast by the stockholders entitled
to vote as a class, whether such stockholders are present in person or
represented by proxy at the meeting, shall be the act of the stockholders,
unless the question is one upon which by express provisions of an applicable
statute or of the Restated Certificate of Incorporation a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 6. Voting Rights. Except as otherwise provided by the Delaware
General Corporation Law or by the Restated Certificate of Incorporation of the
Corporation or any amendments thereto and subject to Section 3 of ARTICLE VI
hereof, each holder of Class A Common Stock shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
Class A held by such stockholder, and each holder of Class B Common Stock shall
at every meeting of the stockholders shall be entitled to ten votes in person
or by proxy for each share of Class B Common Stock held by such stockholder.
Section 7. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him or her
by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period.
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ARTICLE III - DIRECTORS
Section 1. Number, Election and Term of Office. The number of
directors which shall constitute the whole Board of Directors shall be not less
than one (1) and not more than nine (9). The exact number of directors shall be
determined by resolution of the Board, and by adoption of these Second Amended
and Restated Bylaws, the Board of Directors has determined that the number of
directors shall be seven (7). The directors need not be stockholders. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 3 of this Article, and each director elected shall hold
office until his successor is elected and qualified or until his or her death,
resignation or removal. From and after the first annual meeting of the
stockholders that occurs after the closing date of the initial public offering
of the Class A Common Stock, the holders of Class A Common Stock, voting
separately as a class, shall be entitled to elect two of the directors to be
elected at such meeting ("Class A Directors").
Section 2. Removal and Resignation. Any director or the entire Board
of Directors may be removed at any time, with or without cause, by the vote of
a majority of the votes cast by all stockholders entitled to vote at an
election of directors, except that the Class A Directors may be removed without
cause only by the vote of the holders of a majority of the shares of Class A
Common Stock, and except as otherwise provided by statute. Any director may
resign at any time upon written notice to the corporation.
Section 3. Vacancies. Vacancies and newly created directorships
resulting from any increase in the authorized number of directors may be filled
by a vote of the majority of the Board of Directors, and each director so
chosen shall hold office until the next annual meeting of stockholders and
until a successor is duly elected and qualified or until his or her earlier
death, resignation or removal as hereinafter provided; provided, however, that
any vacancy resulting from the resignation or removal of a Class A Director
shall be filled by the remaining Class A Director, or, if there is no remaining
Class A Director, by the vote of the holders of a majority of the shares of
Class A
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Common Stock.
Section 4. Annual Meetings. The annual meeting of each newly elected
Board of Directors shall be held without other notice than this bylaw
immediately after, and at the same place as, the annual meeting of
stockholders.
Section 5. Other Meetings and Notice. Regular meetings, other than
the annual meeting, 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
resolution of the board. Special meetings of the Board of Directors may be
called by or at the request of the chairman, the chief executive officer or the
president on at least 24 hours notice to each director, either personally, by
telephone, by mail, or by telegraph; in like manner and on like notice the
secretary must call a special meeting on the written request of a majority of
directors.
Section 6. Quorum. A majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
directors present at a meeting at which a quorum is present shall be the act of
the Board of Directors. 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 7. Committees. The Board of Directors may, by resolution
passed by a majority of the whole board, designate one or more committees. Each
committee shall consist of one or more of the directors of the corporation,
which, to the extent provided in such resolution and not otherwise limited by
statute, shall have and may exercise the powers of the Board of Directors in
the management and affairs of the Corporation including without limitation the
power to declare a dividend and to authorize the issuance of stock. 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. 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.
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Each committee shall keep regular minutes of its meetings and report the same
to the directors when required.
Section 8. Committee Rules. Each committee of the Board of Directors
may fix its own rules of procedure and shall hold its meetings as provided by
such rules, except as may otherwise be provided by the resolution of the Board
of Directors designating such committee, but in all cases the presence of at
least a majority of the members of such committee shall be necessary to
constitute a quorum. In the event that a member and that member's alternate, if
alternates are designated by the Board of Directors as provided in Section 7 of
this ARTICLE III, of such committee is/are absent or disqualified, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in place
of any such absent or disqualified member.
Section 9. Communications Equipment. Members of the Board of Directors
or any committee thereof may participate in and act at any meeting of such
board or committee through the use of a conference telephone or other
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in the meeting pursuant to this
section shall constitute presence in person at the meeting.
Section 10. Action by Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the board
or committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board of Directors
or committee.
ARTICLE IV - OFFICERS
Section 1. Number. The officers of the Corporation shall be elected by
the Board of Directors and shall consist of a chairman of the board (if the
Board of Directors so
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deems advisable and elects), a president (who shall perform the functions of
the chairman of the board if none be elected), one or more vice-presidents, a
secretary, a treasurer, and such other officers and assistant officers as may
be deemed necessary or desirable by the Board of Directors. Any number of
offices may be held by the same person. In its discretion, the Board of
Directors may choose not to fill any office for any period as it may deem
advisable, except the offices of president and secretary.
Section 2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at the meeting
of the Board of Directors held after each annual meeting of stockholders. If
the election of officers shall not be held at such meeting, such election shall
be held as soon thereafter as conveniently may be. Vacancies may be filled or
new offices created and filled at any meeting of the Board of Directors. Each
officer shall hold office until the next annual meeting of the Board of
Directors and until a successor is duly elected and qualified or until his or
her earlier death, resignation or removal as hereinafter provided.
Section 3. Removal. Any officer or agent elected by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interest of the Corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
Section 4. Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the Board
of Directors for the unexpired portion of the term by the Board of Directors
then in office.
Section 5. Compensation. Compensation of all officers shall be fixed
by the Board of Directors, and no officer shall be prevented from receiving
such compensation by virtue of the fact that he or she is also a director of
the corporation.
Section 6. Chairman of the Board. The chairman shall preside at all
meetings of the Board of Directors and all meetings of the stockholders and
shall have such other powers and perform such duties as may from time to time
be assigned to him by the
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Board of Directors.
Section 7. The Chief Executive Officer. The chief executive officer of
the Corporation shall have such powers and perform such duties as are specified
in these bylaws and as may from time to time be assigned to him by the Board of
Directors. The chief executive officer shall have overall management of the
business of the Corporation and its subsidiaries and shall see that all orders
and resolutions of the boards of directors of the Corporation and its
subsidiaries are carried into effect. The chief executive officer shall execute
bonds, mortgages and other contracts requiring a seal, under the seal of the
corporation, 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. The chief executive officer shall have general powers of
supervision and shall be the final arbitrator of all differences among officers
of the Corporation and its subsidiaries, and such decision as to any matter
affecting the Corporation and its subsidiaries subject only to the boards of
directors.
Section 8. The President. The president shall have such powers and
perform such duties as are specified in these bylaws and as may from time to
time be assigned to him by the Board of Directors. The president shall have
general and active management of the business of the Corporation and shall see
that all orders and resolutions of the Board of Directors are carried into
effect. The president shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, 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. The president
shall have general powers of supervision and shall be the final arbitrator of
all differences between officers of the corporation, and such decision as to
any matter affecting the Corporation subject only to the Board of Directors.
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Section 9. Vice Presidents. The vice-president, or if there shall be
more than one, the vice-presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the president, perform the
duties and exercise the powers of the president and shall perform such other
duties and have such other powers as the Board of Directors may, from time to
time, determine or these bylaws may prescribe.
Section 10. The Secretary and Assistant Secretaries. The secretary
shall attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The secretary
shall give, or cause to be given, notice of all meetings of the stockholders
and special meetings of the Board of Directors; perform such other duties as
may be prescribed by the Board of Directors or president, under whose
supervision he or she shall be; shall have custody of the corporate seal of the
Corporation and the secretary, or an assistant secretary, shall have authority
to affix the same to any instrument requiring it and when so affixed, it may be
attested by his or her signature or by the signature of such assistant
secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
or her signature. The assistant secretary, or if there be more than one, the
assistant secretaries in the order determined by the Board of Directors, shall,
in the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 11. The Treasurer and Assistant Treasurer. The treasurer shall
have the custody of the corporate funds and securities; shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
corporation; shall deposit all monies and other valuable effects in the name
and to the credit of the Corporation as may be ordered by the Board of
Directors, taking proper vouchers for such disbursements; and
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shall render to the president and the Board of Directors, at its regular
meeting or when the Board of Directors so requires, an account of the
corporation. If required by the Board of Directors, the treasurer shall give
the Corporation a bond (which shall be rendered every six years) in such sums
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of the office of treasurer
and for the restoration to the corporation, in case of death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and
other property of whatever kind in the possession or under the control of the
treasurer belonging to the corporation. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
Board of Directors, shall in the absence or disability of the treasurer,
perform the duties and exercise the powers of the treasurer and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
Section 12. Other Officers, Assistant Officers and Agents. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these bylaws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the Board of Directors.
ARTICLE V - INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
Section 1. Right to Indemnification. Each person who was or is made
party or is threatened to be made a party to or is otherwise involved
(including involvement as a witness) in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer of the
Corporation or, while a director or officer of the corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter, an "indemnitee"), whether the basis of such proceeding is alleged
action in an official capacity as a director
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or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law ("DGCL"), as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide for broader
indemnification rights than permitted as of the date of these bylaws), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
excise taxes or penalties and amounts paid in settlement) reasonably incurred
or suffered by such indemnitee in connection therewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the indemnitee's heirs,
executors and administrators; provided, however, that except as provided in
Section 2 of this ARTICLE V with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the corporation. The right to indemnification conferred in this
Section 1 of this ARTICLE V shall be a contract right and shall include the
obligation of the Corporation to pay the expenses incurred in defending any
such proceeding in advance of its final disposition (hereinafter an "advance of
expenses"); provided, however, that if and to the extent that the Board of
Directors of the Corporation requires, an advance of expenses incurred by an
indemnitee in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section 1 or otherwise. The Corporation
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may, by action of its Board of Directors, provide indemnification to employees
and agents of the Corporation with the same or lesser scope and effect as the
foregoing indemnification of directors and officers.
Section 2. Procedure for Indemnification. Any indemnification of a
director or officer of the Corporation or advance of expenses under Section 1
of this ARTICLE V shall be made promptly, and in any event within forty-five
days (or, in the case of an advance of expenses, twenty days) upon the written
request of the director or officer. If a determination by the Corporation that
the director or officer is entitled to indemnification pursuant to this ARTICLE
V is required, and the Corporation fails to respond within sixty days to a
written request for indemnity, the Corporation shall be deemed to have approved
the request. If the Corporation denies a written request for indemnification or
advance of expenses, in whole or in part, or if payment in full pursuant to
such request is not made within forty-five days (or, in the case of an advance
of expenses, twenty days), the right to indemnification or advances as granted
by this ARTICLE V shall be enforceable by the director or officer in any court
of competent jurisdiction. Such person's costs and expenses incurred in
connection with successfully establishing his or her right to indemnification,
in whole or in part, in any such action shall also be indemnified by the
corporation. It shall be a defense to any such action (other than an action
brought to enforce a claim for the advance of expenses where the undertaking
required pursuant to Section 1 of this ARTICLE V, if any, has been tendered to
the corporation) that the claimant has not met the standards of conduct which
make it permissible under the DGCL for the Corporation to indemnify the
claimant for the amount claimed, but the burden of such defense shall be on the
corporation. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination
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by the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. The procedure
for indemnification of other employees and agents for whom indemnification is
provided pursuant to Section 1 of this ARTICLE V shall be the same procedure
set forth in this Section 2 for directors or officers, unless otherwise set
forth in the action of the Board of Directors of the Corporation providing for
indemnification for such employee or agent.
Section 3. Insurance. The Corporation may purchase and maintain
insurance on its own behalf and on behalf of any person who is or was a
director, officer, employee or agent of the Corporation 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 any
expense, liability or loss asserted against him or her and incurred by him or
her in any such capacity, whether or not the Corporation would have the power
to indemnify such person against such expenses, liability or loss under the
DGCL.
Section 4. Service for Subsidiaries. Any person serving as a director,
officer, employee or agent of another corporation, partnership, limited
liability company, joint venture or other enterprise, at least 50% of whose
equity interests are owned by the Corporation (hereinafter a "subsidiary" for
purposes of this ARTICLE V) shall be conclusively presumed to be serving in
such capacity at the request of the corporation.
Section 5. Reliance. Persons who after the date of the adoption of
these bylaws become or remain directors or officers of the Corporation or who,
while a director or officer of the corporation, become or remain a director,
officer, employee or agent of a subsidiary, shall be conclusively presumed to
have relied on the rights to indemnity, advance of expenses and other rights
contained in this ARTICLE V in entering into or continuing such service. The
rights to indemnification and to the advance of expenses conferred in this
ARTICLE V shall apply to claims made against an indemnitee arising
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out of acts or omissions which occurred or occur both prior and subsequent to
the adoption hereof.
Section 6. Non-Exclusivity of Rights. The rights to indemnification
and to the advance of expenses conferred in this ARTICLE V shall not be
exclusive of any other right which any person may have or hereafter acquire
under these bylaws or the corporation's Restated Certificate of Incorporation
or under any statute, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 7. Merger or Consolidation. For purposes of this ARTICLE V,
references to "the corporation" shall include any constituent corporation
(including any constituent of a constituent) absorbed into the corporation in a
consolidation or merger which, 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 V with respect
to the resulting or surviving corporation as he or she would have with respect
to such constituent corporation if its separate existence had continued.
ARTICLE VI - CERTIFICATES OF STOCK
Section 1. Form. Subject to the Restated Certificate of
Incorporation, every holder of stock in the Corporation shall be entitled to
have a certificate, signed by, or in the name of the Corporation by the
president or a vice-president, and the secretary or an assistant secretary of
the corporation, certifying the number of shares owned by him or her in the
corporation. Where a certificate is signed (l) by a transfer agent or an
assistant transfer agent other than the Corporation or its employee or (2) by a
registrar, other than the Corporation or its employee, the signature of any
such president, vice-president, secretary, or assistant secretary may be
facsimile. In case any officer or officers have
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signed a certificate or certificates, or whose facsimile signature or
signatures have been used on certificate or certificates, shall cease to be
such officer or officers of the Corporation whether because of death,
resignation or otherwise before such certificate or certificates have been
delivered by the corporation, such certificate or certificates may nevertheless
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have
been used on such certificate or certificates had not ceased to be such officer
or officers of the corporation. All certificates for shares shall be
consecutively numbered or otherwise identified. The name of the person to whom
the shares represented thereby are issued, with the number of shares and date
of issue, shall be entered on the books of the corporation. All certificates
surrendered to the Corporation for transfer shall be canceled, and no new
certificate shall be issued in replacement until the former certificate for a
like number of shares shall have been surrendered or canceled, except as
otherwise provided in Section 2 with respect to lost, stolen or destroyed
certificates.
Section 2. 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 the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, 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 alleged to have
been lost, stolen or destroyed.
Section 3. Fixing a Record Date. The Board of Directors may fix in
advance a record date for the determination of stockholders entitled to notice
of, and to vote at, any meeting of stockholders and any adjournment thereof;
stockholders entitled to consent to
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corporate action in writing without a meeting; stockholders entitled to receive
payment of any dividend or other distribution or allotment of rights or
entitled to exercise any rights in respect to any change, conversion or
exchange of stock; or, for the purpose of any other lawful action, which record
date may not precede the date on which the resolution fixing such record date
is adopted by the Board of Directors. The record date for the determination of
stockholders entitled to notice of, and to vote at, a meeting of stockholders
shall not be more than 60 days nor less than 10 days before the date of such
meeting. The record date for the determination of stockholders entitled to
consent to corporate action in writing without a meeting shall not be more than
10 days after the date upon which the resolution fixing the record date is
adopted by the Board of Directors. The record date for the determination of
stockholders with respect to any other action shall not be more than 60 days
before the date of such action. If no record date is fixed: the record date for
determining stockholders entitled to notice of, and to vote at, a meeting of
stockholders shall be at the close of business on the day next preceding the
day on which notice is given, or if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held; 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 by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded; and, the record date for determining stockholders
with respect to any other action shall be the close of business on the day on
which the Board of Directors adopts the resolution relating thereto.
ARTICLE VII - GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject
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to the provisions of the Restated Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, pursuant
to law. Dividends may be paid in cash, in property, or in shares of the capital
stock, subject to the provisions of the Restated Certificate of Incorporation.
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 directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to
meet contingencies, equalize dividends, repair or maintain any property of the
corporation, or for any other purpose, and the directors may modify or abolish
any such reserve in the manner in which it was created.
Section 2. Checks, Drafts or Orders. All checks, drafts, or other
orders for the payment of money by or to the Corporation and all notes and
other evidences of indebtedness issued in the name of the Corporation shall be
signed by such officer or officers, agent or agents of the corporation, and in
such manner, as shall be determined by resolution of the Board of Directors or
a duly authorized committee thereof.
Section 3. Contracts. The Board of Directors may authorize any officer
or officers, or any agent or agents, of the Corporation to enter into any
contract or to 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 4. Loans. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiary, including any officer or employee who is a
director of the Corporation or its subsidiary, whenever, in the judgment of the
directors, such loan, guaranty or assistance may reasonably be expected to
benefit the corporation. The loan, guaranty or other assistance may be with or
without interest, and may be unsecured, or secured in such manner as the Board
of Directors shall approve, including, without limitation, a pledge of shares
of stock of the corporation. Nothing contained in this section shall be deemed
to deny, limit or restrict the powers of guaranty or warranty of the
Corporation at
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common law or under any statute.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be
the calendar year unless otherwise fixed by resolution of the Board of
Directors.
Section 6. Corporate Seal. The Board of Directors shall provide a
corporate seal which shall be in the form of a circle and 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 reproduced or otherwise.
Section 7. Voting Securities Owned by Corporation. Voting securities
in any other corporation held by the Corporation shall be voted by the
president or the vice president, unless the Board of Directors specifically
confers authority to vote with respect thereto upon some other person or
officer. Any person authorized to vote securities shall have the power to
appoint proxies, with general power of substitution.
Section 8. Inspection of Books and Records. Any stockholder of record,
in person or by attorney or other agent, shall, upon written demand upon oath
stating the purpose thereof, have the right during the usual hours of 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 any 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 in the State of Delaware or at its principal place of
business.
Section 9. Section Headings. Section headings in these bylaws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
Section 10. Inconsistent Provisions. In the event that any provision
of these
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bylaws is or becomes inconsistent with any provision of the Restated
Certificate of Incorporation, the Delaware General Corporation Law or any other
applicable law, the provision of these bylaws shall not be given any effect to
the extent of such inconsistency but shall otherwise be given full force and
effect.
ARTICLE VIII - AMENDMENTS
These bylaws may be amended, altered or repealed and new bylaws
adopted at any meeting of the Board of Directors by a majority vote. The fact
that the power to adopt, amend, alter or repeal the bylaws has been conferred
upon the Board of Directors shall not divest the stockholders of the same
powers.
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