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EXHIBIT 3.2
BY-LAWS
OF
KEY3MEDIA GROUP, INC.
ARTICLE I
Stockholders
Section 1.1 Annual Meetings. An annual meeting of stockholders shall be
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held for the election of directors at such date, time and place either within or
without the State of Delaware as may be designated by the Board of Directors
from time to time. Any other business properly brought before the meeting may
be transacted at the annual meeting.
Section 1.2 Special Meetings. Except as otherwise provided in the
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Certificate of Incorporation of the Corporation (the "Certificate of
Incorporation"), special meetings of stockholders may be called at any time by,
and only by, the Board of Directors, to be held at such date, time and place
either within or without the State of Delaware as may be stated in the notice of
the meeting.
Section 1.3 Notice of Meetings. Whenever stockholders are required or
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permitted to take any action at a meeting, a written notice of the meeting shall
be given which shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. Unless otherwise required by law, the written notice of any meeting
shall be given not less than ten nor more than sixty days before the date of the
meeting to each stockholder entitled to vote at such meeting. If mailed, such
notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation.
Section 1.4 Adjournments. Any meeting of stockholders, annual or special,
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may be adjourned from time to time, to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the adjournment is for
more than thirty 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.
Section 1.5 Quorum. At each meeting of stockholders, except where
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otherwise required by law, the Certificate of Incorporation or these by-laws,
the holders of a majority of the outstanding shares of stock entitled to vote on
a matter at the meeting, present in person or represented by proxy, shall
constitute a quorum. For purposes of the foregoing, where a separate vote by
class or classes is required for any matter, the holders of a majority of the
outstanding shares of such class or classes, present in person or represented by
proxy, shall constitute a quorum to take action with respect to that vote on
that matter. Two or more classes or series of stock shall be considered a single
class if the holders thereof are entitled to vote together as a single class at
the meeting. In the absence of a quorum of the holders of any class of stock
entitled to vote on a matter, the meeting of such class may be adjourned from
time to time in the manner provided by Sections 1.4 and 1.6 of these by-laws
until a quorum of such class shall be so present or represented. Shares of its
own capital stock belonging on the record date for the meeting to the
Corporation or to another corporation, if a majority of the shares entitled to
vote in the election of directors of such other corporation is held, directly or
indirectly,
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by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by
it in a fiduciary capacity.
Section 1.6 Organization. Meetings of stockholders shall be presided over
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by a Chairman of the Board, if any, or in the absence of a Chairman of the Board
by a Vice Chairman of the Board, if any, or in the absence of a Vice Chairman of
the Board by a Chief Executive Officer, or in the absence of a Chief Executive
Officer by a President, or in the absence of a President by a Chief Operating
Officer, or in the absence of a Chief Operating Officer by a Vice President, or
in the absence of the foregoing persons by a chairman designated by the Board of
Directors, or in the absence of such designation by a chairman chosen at the
meeting. A Secretary, or in the absence of a Secretary an Assistant Secretary,
shall act as secretary of the meeting, but in the absence of a Secretary and any
Assistant Secretary the chairman of the meeting may appoint any person to act as
secretary of the meeting.
The order of business at each such meeting shall be as determined by the
chairman of the meeting. The chairman of the meeting shall have the right and
authority to adjourn a meeting of stockholders without a vote of stockholders
and to prescribe such rules, regulations and procedures and to do all such acts
and things as are necessary or desirable for the proper conduct of the meeting
and are not inconsistent with any rules or regulations adopted by the Board of
Directors pursuant to the provisions of the Certificate of Incorporation,
including the establishment of procedures for the maintenance of order and
safety, limitations on the time allotted to questions or comments on the affairs
of the Corporation, restrictions on entry to such meeting after the time
prescribed for the commencement thereof and the opening and closing of the
voting polls for each item upon which a vote is to be taken.
Section 1.7 Inspectors. Prior to any meeting of stockholders, the Board
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of Directors, a Chairman of the Board, a Vice Chairman of the Board, a Chief
Executive Officer, a President, a Chief Operating Officer, a Vice President or
any other officer designated by the Board shall appoint one or more inspectors
to act at such meeting and make a written report thereof and may designate one
or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at the meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the shares represented at
the meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram, cablegram
or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and records of
the Corporation, and they may also consider other reliable information for the
limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes
than the holder of a proxy is authorized by the record owner to cast or more
votes than the stockholder holds of record. If the inspectors consider other
reliable information for such
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purpose, they shall, at the time they make their certification, specify the
precise information considered by them, including the person or persons from
whom they obtained the information, when the information was obtained, the means
by which the information was obtained and the basis for the inspectors' belief
that such information is accurate and reliable.
Section 1.8 Voting; Proxies. Unless otherwise provided in the Certificate
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of Incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one vote for each share of stock held by such
stockholder which has voting power upon the matter in question. If the
Certificate of Incorporation provides for more or less than one vote for any
share on any matter, every reference in these by-laws to a majority or other
proportion of shares of stock shall refer to such majority or other proportion
of the votes of such shares of stock. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for such
stockholder 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. A duly
executed proxy shall be irrevocable if it 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, regardless of whether the interest with which it is
coupled is an interest in the stock itself or an interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing an instrument in writing
revoking the proxy or another duly executed proxy bearing a later date with a
Secretary. Voting at meetings of stockholders need not be by written ballot
unless so directed by the chairman of the meeting or the Board of Directors.
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. In all other matters, unless otherwise required by law,
the Certificate of Incorporation or these by-laws, the affirmative vote of the
holders of a majority of the shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be the act of the
stockholders. Where a separate vote by class or classes is required, the
affirmative vote of the holders of a majority (or, in the case of an election of
directors, a plurality) 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 or
classes, except as otherwise required by law, the Certificate of Incorporation
or these by-laws.
Section 1.9 Fixing Date for Determination of Stockholders of Record. In
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order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, the Board
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 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 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. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
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 the action for
which a record date is being established. If no record date is fixed, the
record date for determining stockholders for any such
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purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
Section 1.10 List of Stockholders Entitled to Vote. A Secretary shall
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prepare and make, at least ten 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 ten days prior to the
meeting, either at a place within the municipality 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 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 1.11 Advance Notice of Stockholder Nominees for Director and Other
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Stockholder Proposals. (a) The matters to be considered and brought before any
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annual or special meeting of stockholders of the Corporation shall be limited to
only such matters, including the nomination and election of directors, as shall
be brought properly before such meeting in compliance with the procedures set
forth in this Section 1.11.
(b) For any matter to be properly brought before any annual meeting of
stockholders, the matter must be (i) specified in the notice of annual meeting
given by or at the direction of the Board of Directors, (ii) otherwise brought
before the annual meeting by or at the direction of the Board of Directors or
(iii) brought before the annual meeting in the manner specified in this Section
1.11(b) (x) by a stockholder that holds of record stock of the Corporation
entitled to vote at the annual meeting on such matter (including any election of
a director) or (y) by a person (a "Nominee Holder") that holds such stock
through a nominee or "street name" holder of record of such stock and can
demonstrate to the Corporation such indirect ownership of, and such Nominee
Holder's entitlement to vote, such stock on such matter. In addition to any
other requirements under applicable law, the Certificate of Incorporation and
these by-laws, persons nominated by stockholders for election as directors of
the Corporation and any other proposals by stockholders shall be properly
brought before an annual meeting of stockholders only if notice of any such
matter to be presented by a stockholder at such meeting (a "Stockholder Notice")
shall be delivered to a Secretary at the principal executive office of the
Corporation not less than ninety nor more than one hundred and twenty days prior
to the first anniversary date of the annual meeting for the preceding year (or,
in the case of the annual meeting of stockholders to be held in 2001, not less
than ninety nor more than one hundred and twenty days prior to May 1, 2001);
provided, however, that if and only if the annual meeting is not scheduled to be
held within a period that commences thirty days before and ends thirty days
after such anniversary date (or May 1, 2001, in the case of the annual meeting
of stockholders to be held in 2001) (an annual meeting date outside such period
being referred to herein as an "Other Meeting Date"), such Stockholder Notice
shall be given in the manner provided herein by the later of (i) the close of
business on the date ninety days prior to such Other Meeting Date or (ii) the
close of business on the tenth day following the date on which such Other
Meeting Date is first publicly announced or disclosed. Any stockholder desiring
to nominate any person or persons (as the case may be) for election as a
director or directors of the Corporation at an annual meeting of stockholders
shall deliver, as part of such Stockholder Notice, a statement in writing
setting forth the name of the person or persons to be nominated, the number and
class of all shares of each class of stock of the Corporation owned of record
and beneficially by each such person, as reported to such stockholder by such
person, the information regarding each such person required by paragraphs (a),
(e) and (f) of Item 401 of Regulation S-K adopted by the Securities and Exchange
Commission, each such person's signed consent to serve as a director of the
Corporation if elected, such stockholder's name and address, the number of class
of all shares of each class of
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stock of the Corporation owned of record and beneficially by such stockholder
and, in the case of a Nominee Holder, evidence establishing such Nominee
Holder's indirect ownership of stock and entitlement to vote such stock for the
election of directors at the annual meeting. Any stockholder who gives a
Stockholder Notice of any matter (other than a nomination for director) proposed
to be brought before an annual meeting of stockholders shall deliver, as part of
such Stockholder Notice, the text of the proposal to be presented and a brief
written statement of the reasons why such stockholder favors the proposal and
setting forth such stockholder's name and address, the number and class of all
shares of each class of stock of the Corporation owned of record and
beneficially by such stockholder, any material interest of such stockholder in
the matter proposed (other than as a stockholder), if applicable, and, in the
case of a Nominee Holder, evidence establishing such Nominee Holder's indirect
ownership of stock and entitlement to vote such stock on the matter proposed at
the annual meeting. As used in these by-laws, shares "beneficially owned" shall
mean all shares which such person is deemed to beneficially own pursuant to
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934 (the "Exchange
Act"). If a stockholder is entitled to vote only for a specific class or
category of directors at a meeting (annual or special), such stockholder's right
to nominate one or more individuals for election as a director at the meeting
shall be limited to such class or category of directors.
Notwithstanding any provision of this Section 1.11 to the contrary, in the
event that the number of directors to be elected to the Board of Directors of
the Corporation at the next annual meeting of stockholders is increased by
virtue of an increase in the size of the Board of Directors and either all of
the nominees for director at the next annual meeting of stockholders or the size
of the increased Board of Directors is not publicly announced or disclosed by
the Corporation at least one hundred days prior to the first anniversary of the
preceding year's annual meeting (or, in the case of the annual meeting of
stockholders to be held in 2001, at least one hundred days prior to May 1,
2001), a Stockholder Notice shall also be considered timely hereunder, but only
with respect to nominees to stand for election at the next annual meeting as the
result of any new positions created by such increase, if it shall be delivered
to a Secretary at the principal executive office of the Corporation not later
than the close of business on the tenth day following the first day on which all
such nominees or the size of the increased Board of Directors shall have been
publicly announced or disclosed.
(c) Except as provided in the immediately following sentence, no matter
shall be properly brought before a special meeting of stockholders unless such
matter shall have been brought before the meeting pursuant to a notice of such
meeting given by the Corporation or, if applicable, SOFTBANK CORP., a
corporation organized under the laws of Japan, or its successors, and its
affiliates (as defined under Rule 405 promulgated under the Securities Act of
1933 or any similar provision hereafter enacted) (collectively, "Softbank"). In
the event the Corporation or, if applicable, Softbank calls a special meeting of
stockholders for the purpose of electing one or more directors to the Board of
Directors, any stockholder entitled to vote for the election of such director(s)
at such meeting may nominate a person or persons (as the case may be) for
election to such position(s) as are specified in the Corporation's or, if
applicable, Softbank's notice of such meeting, but only, in the case of a
special meeting called by the Board of Directors, if the Stockholder Notice
required by Section 1.11(b) hereof shall be delivered to a Secretary at the
principal executive office of the Corporation not later than the close of
business on the tenth day following the first day on which the date of the
special meeting and either the names of all nominees proposed by the Board of
Directors to be elected at such meeting or the number of directors to be elected
shall have been publicly announced or disclosed.
(d) For purposes of this Section 1.11, a matter shall be deemed to have
been "publicly announced or disclosed" if such matter is disclosed in a press
release reported by the Dow Jones News Service, the Associated Press or a
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission.
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(e) In no event shall the adjournment of an annual meeting or a special
meeting, or any announcement thereof, commence a new period for the giving of
notice as provided in this Section 1.11. This Section 1.11 shall not apply to
(i) any stockholder proposal made pursuant to Rule 14a-8 under the Exchange Act
or (ii) any nomination of a director in an election in which only the holders of
one or more series of Preferred Stock of the Corporation issued pursuant to
Article FOURTH of the Certificate of Incorporation are entitled to vote (unless
otherwise provided in the terms of such stock).
(f) The chairman of any meeting of stockholders, in addition to making any
other determinations that may be appropriate to the conduct of the meeting,
shall have the power and duty to determine whether notice of nominees and other
matters proposed to be brought before a meeting has been duly given in the
manner provided in this Section 1.11 and, if not so given, shall direct and
declare at the meeting that such nominees and other matters shall not be
considered.
Section 1.12 Approval of Stockholder Proposals. Except as otherwise
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required by law, any matter (other than a nomination for director) that has been
properly brought before an annual or special meeting of stockholders of the
Corporation by a stockholder (including a Nominee Holder) in compliance with the
procedures set forth in Section 1.11 shall require for approval thereof the
affirmative vote of the holders of not less than a majority of all outstanding
shares of Common Stock of the Corporation and all other outstanding shares of
stock of the Corporation entitled to vote on such matter, with such outstanding
shares of Common Stock and other stock considered for this purpose as a single
class. Any vote of stockholders required by this Section 1.12 shall be in
addition to any other vote of stockholders of the Corporation that may be
required by law, the Certificate of Incorporation or these by-laws, by any
agreement with a national securities exchange or otherwise.
ARTICLE II
Board of Directors
Section 2.1 Powers; Number; Qualifications. The business and affairs of
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the Corporation shall be managed by or under the direction of the Board of
Directors, except as may be otherwise required by law or provided in the
Certificate of Incorporation. The number of directors of the Corporation and
the number of directors in each class of directors shall be fixed only by
resolution of the Board of Directors from time to time. If the holders of any
class or classes of stock or series thereof are entitled by the Certificate of
Incorporation to elect one or more directors, the preceding sentence shall not
apply to such directors and the number of such directors shall be as provided in
the terms of such stock. Directors need not be stockholders.
Section 2.2 Election; Term of Office; Resignation; Removal; Vacancies.
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Each director shall hold office until the next election of the class or category
for which such director shall have been chosen, and until his or her successor
is elected and qualified or until his or her earlier resignation or removal. Any
director may resign at any time upon written notice to the Board of Directors or
to a Chairman of the Board, a Vice Chairman of the Board, a Chief Executive
Office, a President, a Chief Operating Officer or a Secretary. Such resignation
shall take effect at the time specified therein, and unless otherwise specified
therein no acceptance of such resignation shall be necessary to make it
effective. No director may be removed except as provided in the Certificate of
Incorporation. Except as otherwise provided in the Certificate of Incorporation,
vacancies and newly created directorships resulting from any increase in the
authorized number of directors (other than any directors elected in the manner
described in the next sentence) or from any other cause shall be filled by, and
only by, a majority of the directors then in office, although less than a
quorum, or by the sole remaining director. Whenever the
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holders of any class or classes of stock or series thereof are entitled by the
Certificate of Incorporation to elect one or more directors, vacancies and newly
created directorships of such class or classes or series may be filled by, and
only by, a majority of the directors elected by such class or classes or series
then in office, or by the sole remaining director so elected. Any director
elected or appointed to fill a vacancy or a newly created directorship shall
hold office until the next election of the class of directors of the director
which such director replaced or the class of directors to which such director
was appointed, and until his or her successor is elected and qualified or until
his or her earlier resignation or removal.
Section 2.3 Regular Meetings. Regular meetings of the Board of Directors
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may be held at such places within or without the State of Delaware and at such
times as the Board may from time to time determine, and if so determined notice
thereof need not be given.
Section 2.4 Special Meetings. Special meetings of the Board of Directors
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may be held at any time or place within or without the State of Delaware
whenever called by a Chairman of the Board, if any, by a Vice Chairman of the
Board, if any, by a Chief Executive Officer, if any, by a President, if any, by
a Chief Operating Officer, if any, or by any two directors. Reasonable notice
thereof shall be given by the person or persons calling the meeting.
Section 2.5 Participation in Meetings by Conference Telephone Permitted.
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Unless otherwise restricted by the Certificate of Incorporation or these by-
laws, members of the Board of Directors, or any committee designated by the
Board, may participate in a meeting of the Board or of such committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this by-law shall
constitute presence in person at such meeting.
Section 2.6 Quorum; Vote Required for Action. At each meeting of the Board
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of Directors, one-half of the number of directors equal to (i) the total number
of directors fixed by resolution of the board of directors (including any
vacancies) plus (ii) the number of directors elected by a holder or holders of
Preferred Stock voting separately as a class, as described in the fourth
paragraph of Article EIGHTH of the Certificate of Incorporation (including any
vacancies), shall constitute a quorum for the transaction of business. The vote
of a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board unless the Certificate of Incorporation or these
by-laws shall require a vote of a greater number. In case at any meeting of the
Board a quorum shall not be present, the members or a majority of the members of
the Board present may adjourn the meeting from time to time until a quorum shall
be present.
Section 2.7 Organization. Meetings of the Board of Directors shall be
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presided over by a Chairman of the Board, if any, or in the absence of a
Chairman of the Board by a Vice Chairman of the Board, if any, or in the absence
of a Vice Chairman of the Board, by a Chief Executive Officer, or in the absence
of a Chief Executive Officer, by a President, or in the absence of a President,
by a Chief Operating Officer, or in the absence of a Chief Operating Officer, by
a chairman chosen at the meeting. A Secretary, or in the absence of a Secretary
an Assistant Secretary, shall act as secretary of the meeting, but in the
absence of a Secretary and any Assistant Secretary the chairman of the meeting
may appoint any person to act as secretary of the meeting.
Section 2.8 Action by Directors Without a Meeting. Unless otherwise
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restricted by the Certificate of Incorporation or these by-laws, 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 of such committee, as the case may be, then in office
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consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
Section 2.9 Compensation of Directors. Unless otherwise restricted by the
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Certificate of Incorporation or these by-laws, the Board of Directors shall have
the authority to fix the compensation of directors.
ARTICLE III
Committees
Section 3.1 Committees. The Board of Directors may designate one or more
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committees, each committee to consist of one or more of the directors of the
Corporation. The Board 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. In the absence or disqualification of a member of a
committee, 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 to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors or
in these by-laws, 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, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but no such committee shall have the power or
authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by law
to be submitted to stockholders for approval or (ii) adopting, amending or
repealing these by-laws.
Section 3.2 Committee Rules. Unless the Board of Directors otherwise
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provides, each committee designated by the Board may adopt, amend and repeal
rules for the conduct of its business. In the absence of a provision by the
Board or a provision in the rules of such committee to the contrary, a majority
of the entire authorized number of members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the members
present at a meeting at the time of such vote if a quorum is then present shall
be the act of such committee, and in other respects each committee shall conduct
its business in the same manner as the Board conducts its business pursuant to
Article II of these by-laws.
ARTICLE IV
Officers
Section 4.1 Officers; Election or Appointment. The Board of Directors
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shall take such action as may be necessary from time to time to ensure that the
Corporation has such officers as are necessary, under Section 5.1 of these by-
laws and the Delaware General Corporation Law as currently in effect or as the
same may hereafter be amended, to enable it to sign stock certificates. In
addition, the Board of Directors at any time and from time to time may elect (i)
one or more Chairmen of the Board and/or one or more Vice Chairmen of the Board
from among its members, (ii) one or more Chief Executive Officers, one or more
Presidents and/or one or more Chief Operating Officers, (iii) one or more Vice
Presidents, one or more Treasurers and/or one or more Secretaries and/or (iv)
one or more other officers, in the case of each of (i), (ii), (iii) and (iv) if
and to the extent the Board deems desirable. The Board of Directors may give
any officer such further designations or alternate titles as it considers
desirable. In addition, the Board of Directors at any time and from time to
time may authorize any officer of the Corporation to appoint one or more
officers of the kind described in clauses (iii) and (iv) above. Any number
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of offices may be held by the same person and directors may hold any office
unless the Certificate of Incorporation or these by-laws otherwise provide.
Section 4.2 Term of Office; Resignation; Removal; Vacancies. Unless
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otherwise provided in the resolution of the Board of Directors electing or
authorizing the appointment of any officer, each officer shall hold office until
his or her successor is elected or appointed and qualified or until his or her
earlier resignation or removal. Any officer may resign at any time upon written
notice to the Board or to such person or persons as the Board may designate.
Such resignation shall take effect at the time specified therein, and unless
otherwise specified therein no acceptance of such resignation shall be necessary
to make it effective. The Board may remove any officer with or without cause at
any time. Any officer authorized by the Board to appoint a person to hold an
office of the Corporation may also remove such person from such office with or
without cause at any time, unless otherwise provided in the resolution of the
Board providing such authorization. Any such removal shall be without prejudice
to the contractual rights of such officer, if any, with the Corporation, but the
election or appointment of an officer shall not of itself create contractual
rights. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise may be filled by the Board at any regular or
special meeting or by an officer authorized by the Board to appoint a person to
hold such office.
Section 4.3 Powers and Duties. The officers of the Corporation shall have
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such powers and duties in the management of the Corporation as shall be stated
in these by-laws or in a resolution of the Board of Directors which is not
inconsistent with these by-laws and, to the extent not so stated, as generally
pertain to their respective offices, subject to the control of the Board. A
Secretary or such other officer appointed to do so by the Board shall have the
duty to record the proceedings of the meetings of the stockholders, the Board of
Directors and any committees in a book to be kept for that purpose. The Board
may require any officer, agent or employee to give security for the faithful
performance of his or her duties.
ARTICLE V
Stock
Section 5.1 Certificates; Uncertificated Shares. The shares of stock in
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the Corporation shall be represented by certificates, provided that the Board of
Directors of the Corporation may provide by resolution or resolutions that some
or all of any or all classes or series of its stock shall be uncertificated
shares. Any such resolution shall not apply to any such shares represented by a
certificate theretofore issued until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution or resolutions
by the Board of Directors of the Corporation, every holder of stock represented
by certificates, and upon request every holder of uncertificated shares, shall
be entitled to have a certificate signed by or in the name of the Corporation by
a Chairman or Vice Chairman of the Board or a President or Vice President, and
by a Treasurer, Assistant Treasurer, Secretary or Assistant Secretary,
representing the number of shares of stock in the Corporation owned by such
holder. If such certificate is manually signed by one officer or manually
countersigned by a transfer agent or by a registrar, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon 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. Certificates representing shares of stock of the Corporation
may bear such legends regarding restrictions on transfer or other matters as any
officer or officers of the Corporation may determine to be appropriate and
lawful.
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If the Corporation is authorized to issue more than one class of stock or
more than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Corporation shall issue to represent such class or
series of stock, provided that, except as otherwise required by law, in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of such class or series of stock
and the qualifications, limitations or restrictions of such preferences and/or
rights. Within a reasonable time after the issuance or transfer of
uncertificated shares of any class or series of stock, the Corporation shall
send to the registered owner thereof a written notice containing the information
required by law to be set forth or stated on certificates representing shares of
such class or series or a statement that the Corporation will furnish without
charge to each stockholder who so requests the powers, designations, preferences
and relative, participating, optional or other special rights of such class or
series and the qualifications, limitations or restrictions of such preferences
and/or rights.
Except as otherwise expressly provided by law, the rights and obligations
of the holders of uncertificated shares and the rights and obligations of the
holders of certificates representing stock of the same class and series shall be
identical.
Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates.
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The Corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such owner's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1 Fiscal Year. The fiscal year of the Corporation shall be
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determined by the Board of Directors.
Section 6.2 Seal. The Corporation may have a corporate seal which shall
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have the name of the Corporation inscribed thereon and shall be in such form as
may be approved from time to time by the Board of Directors. The corporate seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
in any other manner reproduced.
Section 6.3 Waiver of Notice of Meetings of Stockholders, Directors and
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Committees. Whenever notice is required to be given by law or under any
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provision of the Certificate of Incorporation or these by-laws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors or members of a committee of directors need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation
or these by-laws.
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Section 6.4 Indemnification. The Corporation shall indemnify to the full
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extent permitted by law any person made or threatened to be made a party to any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person or such person's testator
or intestate is or was a director or officer of the Corporation, or serves or
served at the request of the Corporation as a director, officer, trustee,
member, stockholder, partner, incorporator or liquidator of or in any other
capacity for any other enterprise. Expenses, including attorneys' fees,
incurred by any such person in defending any such action, suit or proceeding
shall be paid or reimbursed by the Corporation promptly upon demand by such
person and, if any such demand is made in advance of the final disposition of
any such action, suit or proceeding, promptly upon receipt by the Corporation of
an undertaking of such person to repay such expenses if it shall ultimately be
determined that such person is not entitled to be indemnified by the
Corporation. The rights provided to any person by this by-law shall be
enforceable against the Corporation by such person, who shall be presumed to
have relied upon it in serving or continuing to serve as a director or officer
or in such other capacity as provided above. In addition, the rights provided
to any person by this by-law shall survive the termination of such person as any
such director, officer, trustee, member, stockholder, partner, incorporator or
liquidator and, insofar as such person served at the request of the Corporation
as a director, officer, trustee, member, stockholder, partner, incorporator or
liquidator of or in any other capacity for any other enterprise, shall survive
the termination of such request as to service prior to termination of such
request. No amendment of this by-law shall impair the rights of any person
arising at any time with respect to events occurring prior to such amendment.
Notwithstanding anything contained in this Section 6.4, except for
proceedings to enforce rights provided in this Section 6.4, the Corporation
shall not be obligated under this Section 6.4 to provide any indemnification or
any payment or reimbursement of expenses to any director, officer or other
person in connection with a proceeding (or part thereof) initiated by such
person (which shall not include counterclaims or crossclaims initiated by
others) unless the Board of Directors has authorized or consented to such
proceeding (or part thereof) in a resolution adopted by the Board.
For purposes of this by-law, the term "Subsidiary" shall mean any
corporation, partnership, limited liability company or other entity in which the
Corporation owns, directly or indirectly, a majority of the economic or voting
ownership interest; the term "other enterprise" shall include any corporation,
partnership, limited liability company, joint venture, trust, association or
other unincorporated organization or other entity and any employee benefit plan;
the term "officer," when used with respect to the Corporation, shall refer to
any officer elected by or appointed pursuant to authority granted by the Board
of Directors of the Corporation pursuant to clauses (i), (ii), (iii) and (iv) or
Section 4.1 of these by-laws, when used with respect to a Subsidiary or other
enterprise that is a corporation, shall refer to any person elected or appointed
pursuant to the by-laws of such Subsidiary or other enterprise or chosen in such
manner as is prescribed by the by-laws of such Subsidiary or other enterprise or
determined by the Board of Directors of such Subsidiary or other enterprise, and
when used with respect to a Subsidiary or other enterprise that is not a
corporation or is organized in a foreign jurisdiction, the term "officer" shall
include in addition to any officer of such entity, any person serving in a
similar capacity or as the manager of such entity; service "at the request of
the Corporation" shall include service as a director or officer of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants or
beneficiaries; any excise taxes assessed on a person with respect to an employee
benefit plan shall be deemed to be indemnifiable expenses; and action by a
person with respect to an employee benefit plan which such person reasonably
believes to be in the interest of the participants and beneficiaries of such
plan shall be deemed to be action not opposed to the best interests of the
Corporation.
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To the extent authorized from time to time by the Board of Directors, the
Corporation may provide to (i) any one or more employees and other agents of the
Corporation, (ii) any one or more officers, employees and other agents of any
Subsidiary and (iii) any one or more directors, officers, employees and other
agents of an other enterprise, rights of indemnification and to receive payment
or reimbursement of expenses, including attorneys' fees, that are similar to the
rights conferred in this Section 6.4 on directors and officers of the
Corporation or any Subsidiary or other enterprise. Any such rights shall have
the same force and effect as they would have if they were conferred in this
Section 6.4.
Nothing in this Section 6.4 shall limit the power of the Corporation or the
Board of Directors to provide rights of indemnification and to make payment and
reimbursement of expenses, including attorneys' fees, to directors, officers,
employees, agents and other persons otherwise than pursuant to this Section 6.4.
Section 6.5 Interested Directors; Quorum. No contract or transaction
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between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, limited liability
company, joint venture, trust, association or other unincorporated organization
or other entity in which one or more of its directors or officers serve as
directors, officers, trustees or in a similar capacity or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorized the contract for such
purpose, if: (i) the material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the Board or
the committee, and the Board or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; (ii)
the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by a vote of the stockholders; or (iii) the contract or transaction
is fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board, a committee thereof or the stockholders. Common or
interested directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the
contract or transaction.
Section 6.6 Form of Records. Any records maintained by the Corporation in
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the regular course of its business, including its stock ledger, books of account
and minute books, may be kept on, or be in the form of, punch cards, magnetic
tape, photographs, microphotographs or any other information storage device,
provided that the records so kept can be converted into clearly legible form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
Section 6.7 Laws and Regulations; Close of Business. (a) For purposes of
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these by-laws, any reference to a statute, rule or regulation of any
governmental body means such statute, rule or regulation (including any
successor thereto) as the same may be amended from time to time.
(b) Any reference in these by-laws to the close of business on any day
shall be deemed to mean 5:00 P.M. New York time on such day, whether or not such
day is a business day.
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Section 6.8 Amendment of By-Laws. These by-laws may be amended, modified
--------------------
or repealed, and new by-laws may be adopted at any time, by the Board of
Directors. Stockholders of the Corporation may adopt additional by-laws and
amend, modify or repeal any by-law whether or not adopted by them, but only in
accordance with Article SIXTH of the Certificate of Incorporation.
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