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EXHIBIT 3.2
BY-LAWS
OF
GABRIEL COMMUNICATIONS, INC.
AS AMENDED MARCH 21, 2000
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BY-LAWS
OF
GABRIEL COMMUNICATIONS, INC.
TABLE OF CONTENTS
<TABLE>
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PAGE
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ARTICLE I. Offices...............................................................................................1
SECTION 1.1. Registered Office...........................................................................1
SECTION 1.2. Other Offices...............................................................................1
ARTICLE II. Meetings of Stockholders.............................................................................1
SECTION 2.1. Place.......................................................................................1
SECTION 2.2. Annual Meetings.............................................................................1
SECTION 2.3. Special Meetings............................................................................1
SECTION 2.4. Notice of Meetings..........................................................................1
SECTION 2.5. Adjournments................................................................................2
SECTION 2.6. List of Stockholders........................................................................2
SECTION 2.7. Quorum......................................................................................2
SECTION 2.8. Organization................................................................................2
SECTION 2.9. Proxies; Voting.............................................................................3
ARTICLE III. Board of Directors..................................................................................4
SECTION 3.1. General Powers..............................................................................4
SECTION 3.2. Number and Term of Office...................................................................4
SECTION 3.3. Resignation, Removal and Vacancies..........................................................4
SECTION 3.4. Meetings....................................................................................5
SECTION 3.5. Compensation................................................................................6
ARTICLE IV. Committees...........................................................................................6
SECTION 4.1. Committees..................................................................................6
SECTION 4.2. Meetings and Quorum.........................................................................6
ARTICLE V. Officers..............................................................................................7
SECTION 5.1. Election and Appointment; Term of Office....................................................7
SECTION 5.2. Resignation; Removal; Vacancies.............................................................7
SECTION 5.3. Duties and Functions........................................................................7
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<TABLE>
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ARTICLE VI. Books and Records....................................................................................9
ARTICLE VII. Shares and Their Transfer; Fixing Record Dates......................................................9
SECTION 7.1. Certificates for Stock......................................................................9
SECTION 7.2. Transfer Agents and Registrars; Facsimile Signatures........................................9
SECTION 7.3. Stock Record...............................................................................10
SECTION 7.4. Transfer of Stock..........................................................................10
SECTION 7.5. Lost, Stolen, Destroyed or Mutilated Certificates..........................................10
SECTION 7.6. Record Dates...............................................................................10
ARTICLE VIII. Corporate Seal....................................................................................11
ARTICLE IX. Fiscal Year.........................................................................................11
ARTICLE X. Indemnification......................................................................................11
ARTICLE XI. Amendments..........................................................................................12
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BY-LAWS
OF
GABRIEL COMMUNICATIONS, INC.
ARTICLE I.
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at 1013 Centre Road, City
of Wilmington, County of New Castle, Delaware, 19805. The name of the registered
agent in charge thereof is Corporation Service Company.
SECTION 1.2. OTHER OFFICES. The Corporation may also have
offices at such other places within or without the State of Delaware as the
Board of Directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
SECTION 2.1. PLACE. Meetings of stockholders shall be held at
such place, within or without the State of Delaware, as shall be designated from
time to time by the Board of Directors and stated in the notice of the meeting.
SECTION 2.2. ANNUAL MEETINGS. The annual meeting of
stockholders for the election of directors and for the transaction of such other
business as may properly come before the meeting shall be held on the second
Tuesday of May if not a legal holiday, and if a legal holiday then on the next
day following which is not a legal holiday, at 10:00 A.M., or at such other date
and time as shall be designated from time to time by the Board of Directors and
stated in the notice of the meeting.
SECTION 2.3. SPECIAL MEETINGS. Special meetings of the
stockholders for any purpose or purposes may be called by any two (2) members of
the Board of Directors or by the Chairman of the Board of the Corporation, to be
held at such place, either within or without the State of Delaware, and at such
date and time as shall be designated in the notice of the meeting.
SECTION 2.4. NOTICE OF MEETINGS. Except as otherwise expressly
required by law, written notice of each meeting of the stockholders shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed given when deposited in the United States
mail, postage prepaid, directed to the stockholder at the stockholder's address
as it appears on the records of the Corporation. Every such notice shall state
the place, date and
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hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. A written waiver of notice, signed by
the person entitled thereto, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a person at a meeting in
person or by proxy shall constitute a waiver of notice of such meeting, except
when the person attends the 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.
SECTION 2.5. ADJOURNMENTS. Any meeting of the stockholders,
annual or special, may adjourn 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 (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
SECTION 2.6. LIST OF STOCKHOLDERS. At least ten (10) days
before every meeting of the stockholders, the Secretary or other officer of the
Corporation who shall have charge of the stock ledger of the Corporation shall
prepare and make, or cause the preparation and making of, 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 (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. Such list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
SECTION 2.7. QUORUM. At each meeting of the stockholders,
except as otherwise expressly required by law or by the Certificate of
Incorporation of the Corporation, the holders of a majority of the voting power
of the issued and outstanding shares of each class of stock of the Corporation
entitled to vote at the meeting, present in person or represented by proxy,
shall constitute a quorum for the transaction of business. For purposes of the
foregoing, 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 at any such meeting or any adjournment
thereof, any officer entitled to preside at, or to act as secretary of, such
meeting may adjourn the meeting from time to time in the manner provided in
Section 2.5 of these By-laws, until stockholders holding the amount of stock
requisite for a quorum shall be present in person or by proxy.
SECTION 2.8. ORGANIZATION. At each meeting of the
stockholders, one of the following shall act as chairman of the meeting and
preside thereat, in the following order of precedence:
(a) the Chairman of the Board;
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(b) the President;
(c) any other officer of the Corporation designated by
the Board of Directors to act as chairman of such
meeting and to preside thereat if both of the
above-named officers shall be absent from such
meeting; or
(d) in the absence of any of the foregoing, a stockholder
of record of the Corporation who shall be chosen
chairman of such meeting by a majority in voting
power of the stockholders present in person or by
proxy at the meeting and entitled to vote thereat.
The Secretary, or, if the Secretary shall be presiding over the meeting in
accordance with the provisions of this Section or if the Secretary shall be
absent from such meeting, the person (who shall be an Assistant Secretary, if an
Assistant Secretary, shall be present thereat) whom the chairman of such meeting
shall appoint, shall act as secretary of such meeting and keep the minutes
thereof.
SECTION 2.9. PROXIES; VOTING. 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 such stockholder by proxy, but no such proxy shall be voted or acted
upon after three (3) 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. 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 the Secretary of the Corporation. Voting at
meetings of the stockholders need not be by written ballot and need not be
conducted by inspectors unless otherwise provided in these By-laws or unless so
directed by the chairman of the meeting or unless the holders of a majority of
the voting power of the outstanding shares of all classes of stock entitled to
vote thereon present in person or by proxy at such meeting shall so determine.
At all meetings of the stockholders for the election of directors, 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 shall be sufficient to
elect. All other elections and questions shall, unless otherwise provided by law
or by the Certificate of Incorporation of the Corporation or a Certificate of
Designation thereunder, or these By-laws, be decided by the vote of the holders
of a majority of the voting power of the outstanding shares of the Corporation's
stock entitled to vote thereon present in person or by proxy at the meeting,
voting as a single class, provided that (except as otherwise required by law or
by the Certificate of Incorporation of the Corporation) the Board of Directors
may require a larger vote upon any election or question.
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ARTICLE III.
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors.
SECTION 3.2. NUMBER AND TERM OF OFFICE. The number of
directors which shall constitute the whole Board of Directors shall be nine (9).
The Board of Directors shall be divided into three (3) classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. Initially, the directors of Class I shall be elected to
serve until the annual meeting of stockholders to be held in 2000, the directors
of Class II shall be elected to serve until the annual meeting of stockholders
to be held in 2001, and the directors of Class III shall be elected to serve
until the annual meeting of stockholders to be held in 2002, and in each case,
until their respective successors shall have been elected and qualified in the
class to which such director is assigned or until their earlier death,
resignation and removal. At each annual meeting of stockholders, the successors
of the directors of the class whose term expires in that year shall be elected
to hold office for a term of three years (and until their respective successors
shall have been elected and qualified in such class or until their earlier
death, resignation or removal), so that the term of one class of directors shall
expire in each year. If the number of directors is changed, any increase or
decrease in directorships shall be apportioned among the classes so as to
maintain the number of directors in each class as nearly equal as possible, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director. Any vacancy on the Board of Directors, whether arising
through death, resignation or removal, or through an increase in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors then in office, even if less than a quorum. Any director elected to
fill a vacancy shall hold office only until the next election of directors by
the stockholders. Directors elected by the stockholders of the Corporation 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.
SECTION 3.3. RESIGNATION, REMOVAL AND VACANCIES. Any director
may resign at any time by giving written notice of his resignation to the Board
of Directors or to the Chairman of the Board or the Secretary of the
Corporation. Any such resignation shall take effect upon receipt unless
specified to be effective at some other time and, unless otherwise specified
therein, no acceptance of such resignation shall be necessary to make it
effective. A director may be removed with or without cause by the holders of a
majority of the shares of stock entitled to vote for the election of directors.
Any vacancy by reason of death, resignation, removal or otherwise may be filled
by the holders of a majority of the stock entitled to vote for the election of
directors to fill such vacancy or by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director so elected, each to
hold office until the next annual meeting of stockholders and until his or her
successor shall have been elected and qualified or until his or her earlier
death, resignation or removal.
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SECTION 3.4. MEETINGS.
(A) ANNUAL MEETINGS. As promptly as practicable after
each annual election of directors, the Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business.
(B) REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as the Board of Directors shall
from time to time determine.
(C) SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board or by any
two (2) members of the Board of Directors. Any and all business may be
transacted at a special meeting which may be transacted at a regular meeting of
the Board of Directors.
(D) PLACE OF MEETING. The Board of Directors may hold its
meetings at such place or places within or without the State of Delaware as the
Board of Directors may from time to time by resolution determine or as shall be
designated in the notice of meeting.
(E) NOTICE OF MEETINGS. Notice of the annual and other
regular meetings of the Board of Directors or of any adjourned meeting need not
be given. Notice of special meetings of the Board of Directors, or of any
meeting of any committee of the Board of Directors, shall be given to each
director, or member of such committee, at least five (5) business days before
the day on which such meeting is to be held, if by mail, and at least two (2)
business days before the time of the meeting, if by telegraph, cable, telex,
telecopy or telephone, or if delivered personally. Such notice shall include the
time and place of such meeting. A written waiver of notice, signed by the
director, whether before or after such meeting shall be deemed equivalent to
notice. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting, except when the director attends the meeting for the
express purposes of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
(F) QUORUM AND MANNER OF ACTING. At least five (5) of the
directors then in office (including at least three (3) directors who are not
also executive officers of the Corporation ("Institutional Directors")) shall be
present in person at any meeting of the Board of Directors in order to
constitute a quorum for the transaction of business at such meeting. In the
absence of a quorum for any such meeting, a majority of the directors present
thereat may adjourn such meeting from time to time until a quorum shall be
present. 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 of Directors unless the vote of
a greater number of directors shall be required by the Certificate of
Incorporation of the Corporation, these By-laws or any stockholders agreement
between the Corporation and the holders of at least a majority of the stock
entitled to vote for the election of directors.
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(G) ACTION BY COMMUNICATIONS EQUIPMENT. The directors, or
the members of any committee of the Board of Directors, may participate in a
meeting of the Board of Directors, or of such committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
(H) ACTION BY 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 of Directors
or such committee, as the case may be, consent thereto in writing, and such
writing is filed with the minutes of the proceedings of the Board of Directors
or such committee.
(I) ORGANIZATION. At each meeting of the Board of
Directors, the Chairman of the Board, or, if the Chairman of the Board shall be
absent from a meeting, any director chosen by a majority of the directors
present thereat, shall act as chairman of the meeting and preside thereat. The
Secretary or, in the absence of the Secretary, any person (who shall be an
Assistant Secretary, if an Assistant Secretary shall be present thereat) whom
the chairman shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 3.5. COMPENSATION. The Board of Directors may provide
that the Corporation shall reimburse directors for any expenses incurred on
account of attendance at any meeting of the Board of Directors or any committee
thereof, and may otherwise fix the compensation of directors. Nothing herein
shall preclude any director from serving the Corporation in any other capacity
and receiving compensation therefor or limit the authority of the Board of
Directors to fix such compensation.
ARTICLE IV.
COMMITTEES
SECTION 4.1. COMMITTEES. The Board of Directors may designate
one or more committees, each committee to consist of three (3) or more directors
(including the Chairman of the Board and at least one Institutional Director),
and to have such duties and functions permitted by law as shall be provided in
such resolution.
SECTION 4.2. MEETINGS AND QUORUM. Each Committee shall meet as
often as may be deemed necessary and expedient at such times and places as shall
be determined by such Committee. At all meetings of any Committee, a majority of
the members thereof shall constitute a quorum and the vote of a majority of all
of the members thereof at a meeting at which a quorum is present shall be the
act of such Committee. The Chairman of the Board or, in his absence, any other
member of any Committee selected by a majority of the members present shall
preside at the meetings of any Committee.
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ARTICLE V.
OFFICERS
SECTION 5.1. ELECTION AND APPOINTMENT; TERM OF OFFICE. The
officers of the Corporation shall be a Chairman of the Board, a President, one
or more Vice Presidents (the number thereof to be determined from time to time
by the Board of Directors), a Treasurer and a Secretary. Each such officer shall
be elected by the Board of Directors at its annual meeting and shall hold office
until the next annual meeting of the Board of Directors and until his or her
successor is elected or until his or her earlier death, resignation or removal
in the manner hereinafter provided. The Board of Directors may elect or appoint
such other officers (including one or more Vice Chairmen of the Board, one or
more Assistant Treasurers and one or more Assistant Secretaries) as it deems
necessary who shall have such authority and shall perform such duties as the
Board of Directors may prescribe. If additional officers are elected or
appointed during the year, each of them shall hold office until the next annual
meeting of the Board of Directors at which officers are regularly elected or
appointed and until his or her successor is elected or appointed or until his or
her earlier death, resignation or removal in the manner hereinafter provided.
SECTION 5.2. RESIGNATION; REMOVAL; VACANCIES.
(A) RESIGNATION. Any officer may resign at any time by
giving written notice to the Chairman of the Board or the Secretary of the
Corporation, and such resignation shall take effect upon receipt unless
specified therein to be effective at some other time (subject always to the
provisions of Section 5.2B). No acceptance of any such resignation shall be
necessary to make it effective.
(B) REMOVAL. All officers and agents elected or appointed
by the Board of Directors shall be subject to removal at any time by the Board
of Directors with or without cause.
(C) VACANCIES. A vacancy in any office may be filled for
the unexpired portion of the term in the same manner as provided for election or
appointment to such office.
SECTION 5.3. DUTIES AND FUNCTIONS.
(A) CHAIRMAN OF THE BOARD. The Chairman of the Board
shall preside at all meetings of stockholders and directors and shall perform
such other duties as the Board of Directors may prescribe. In the absence or
incapacity of the Chairman of the Board, the powers and duties of the Chairman
of the Board shall be vested in the Vice Chairmen of the Board in the order of
their seniority, if any, in the President or in such other officer as the Board
of Directors or the Chairman of the Board shall have most recently designated
for that purpose in a writing filed with the Secretary or as otherwise
established by the Board of Directors from time to time.
(B) CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
of the Corporation shall see that orders and resolutions of the stockholders and
Board of Directors are carried into effect. Subject to the direction and control
of the Board of Directors, the Chief Executive Officer shall have responsibility
for the management and control of the affairs and business of the
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Corporation and shall perform all duties and have all powers which are commonly
incident to the office of the Chief Executive Officer, including the power to
enter into commitments, execute and deliver contracts and do and perform all
such other acts and things as are necessary and appropriate to accomplish the
Corporation's business purposes and to manage the day to day business,
operations and affairs of the Corporation. The Chief Executive Officer may
assign such duties to other officers of the Corporation as he or she deems
appropriate.
(C) PRESIDENT. The President shall act under the
direction of the Chief Executive Officer. The President shall be the Chief
Operating Officer of the Corporation and shall have such powers and perform such
duties as the Board of Directors or the Chief Executive Officer may prescribe.
In the absence or incapacity of the Chief Executive Officer, the President shall
perform the duties of the Chief Executive Officer.
(D) VICE PRESIDENTS. The Vice Presidents shall have such
powers and perform such duties as the Board of Directors or the Chief Executive
Officer or the President may prescribe. One or more Vice Presidents may be given
and shall use as part of his or her title such other designations, including,
without limitation, the designations "Executive Vice President" and "Senior Vice
President", as the Board of Directors may designate from time to time. In the
absence or incapacity of the President, the powers and duties of the President
shall be vested in and performed by such Vice Presidents as have the designation
"Executive Vice President", in the order of their seniority or as otherwise
established by action of the Board of Directors from time to time, or by such
other officer as the Board of Directors or the Chief Executive Officer or the
President shall have most recently designated for that purpose in a writing
filed with the Secretary.
(E) CHIEF FINANCIAL OFFICER. The Chief Financial Officer
shall act under the direction of the Chief Executive Officer. Subject to the
direction of the Chief Executive Officer, the Chief Financial Officer shall have
charge of the accounting records of the Corporation, shall keep full and
accurate accounts of all receipts and disbursements in books belonging to the
Corporation, shall maintain adequate internal control of the Corporation's
accounts, and perform such other duties as may be prescribed by the Chief
Executive Officer, the President or the Board of Directors.
(F) TREASURER. The Treasurer shall act under the
direction of the Chief Executive Officer. Subject to the direction of the Chief
Executive Officer, the Treasurer shall have charge and custody of and be
responsible for all funds and securities of the Corporation and the deposit
thereof in the name and to the credit of the Corporation in such depositories as
may be designated by the Board of Directors or by the Treasurer pursuant hereto.
The Treasurer shall be authorized at any time, and from time to time, by a
writing countersigned by the Chief Executive Officer or the President, to open
bank accounts in the name of the Corporation in any bank or trust company for
the deposit therein of any funds, drafts, checks or other orders for the payment
of money to the Corporation; and the Treasurer shall be authorized at any time,
and from time to time, by a writing countersigned by the Chief Executive Officer
or the President, to authorize and empower any representative or agent of the
Corporation to draw upon or sign for the Corporation either manually or by the
use of facsimile signature, any and all checks, drafts or other orders for the
payment of money against such bank accounts which any such bank or trust company
may pay without further inquiry.
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(G) SECRETARY. The Secretary shall act under the
direction of the Chief Executive Officer. Subject to the direction of the Chief
Executive Officer, the Secretary shall attend all meetings of the Board of
Directors and the stockholders and record the proceedings in a book to be kept
for that purpose and shall perform like duties for committees designated by the
Board of Directors 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. The Secretary shall affix the seal of the Corporation to all deeds,
contracts, bonds or other instruments requiring the corporate seal when the same
shall have been signed on behalf of the Corporation by a duly authorized
officer. The Secretary shall be the custodian of all contracts, deeds, documents
and all other indicia of title to properties owned by the Corporation and of its
other corporate records (except accounting records).
(H) EXECUTION OF DOCUMENTS. The Board of Directors or the
Chief Executive Officer shall designate the officers, employees and agents of
the Corporation who shall have power to execute and deliver deeds, contracts,
mortgages, bonds, debentures, checks, notes, drafts and other orders for the
payment of money and other documents in the ordinary course of business of the
Corporation for and in the name of the Corporation, except when the execution
and delivery thereof shall be expressly delegated by the Board of Directors or
these By-laws to some other officer or agent of the Corporation.
ARTICLE VI.
BOOKS AND RECORDS
The books and records of the Corporation may be kept at such
places within or without the State of Delaware as the Board of Directors may
from time to time determine.
ARTICLE VII.
SHARES AND THEIR TRANSFER; FIXING RECORD DATES
SECTION 7.1. CERTIFICATES FOR STOCK. Every owner of stock of
the Corporation shall be entitled to have a certificate certifying the number of
shares owned and designating the class of stock to which such shares belong,
which shall otherwise be in such form as the Board of Directors shall prescribe.
Each such certificate shall be signed by, or in the name of the Corporation by,
the Chairman of the Board or the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation. In the event the Corporation is advised in writing of any
agreement or agreements among stockholders of the Corporation relating to
restrictions on the transferability or voting rights of the Corporation's stock,
no certificate for such restricted stock will be issued by the Corporation
unless first imprinted with a legend referring to such agreement or agreements.
SECTION 7.2. TRANSFER AGENTS AND REGISTRARS; FACSIMILE
SIGNATURES. The Board of Directors shall have the power to appoint one or more
transfer agents and/or registrars for the transfer and/or registration of
certificates of stock of any class, and may require
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that stock certificates shall be countersigned and/or registered by one or more
of such transfer agents and/or registrars. In the case of certificates for stock
of the Corporation countersigned by a transfer agent of the Corporation and/or
registered by a registrar of the Corporation, the signatures of the officers of
the Corporation thereon may be facsimiles of their respective autograph
signatures, and all such stock certificates so countersigned and/or registered
and signed in facsimile as aforesaid shall be as valid and effective for all
purposes as if the facsimile signatures thereon of such officers were their
respective autograph signatures, and notwithstanding the fact that any such
officer whose facsimile signature appears thereon may have ceased to be such
officer at the time when any such stock certificate shall be actually issued or
delivered.
SECTION 7.3. STOCK RECORD. A record shall be kept of the name
of the person owning the stock represented by each certificate for stock of the
Corporation issued, the number of shares represented by each such certificate,
and the date thereof, and, in the case of cancellation, the date of
cancellation. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes.
SECTION 7.4. TRANSFER OF STOCK. Transfers of shares of the
stock of the Corporation shall be made only on the books of the Corporation by
the registered holder thereof, or by the attorney of such registered holder
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation, and upon the surrender to the Corporation or a
transfer agent of the Corporation of the certificate or certificates for such
shares properly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer.
SECTION 7.5. LOST, STOLEN, DESTROYED OR MUTILATED
CERTIFICATES. The holder of any stock of the Corporation shall promptly notify
the Corporation of any loss, theft, destruction or mutilation of the certificate
therefor. The Corporation may issue a new certificate for stock in the place of
any certificate theretofore issued by it and alleged to have been lost, stolen,
destroyed or mutilated, and the Board of Directors may, in its discretion,
require the owner of the lost, stolen, destroyed or mutilated certificate or the
legal representative of such owner to give the Corporation a bond in such sum,
limited or unlimited, in such form and with such surety or sureties as the Board
of Directors shall in its discretion determine, to indemnify the Corporation
against any claim that may be made against it on account of the alleged loss,
theft, destruction or mutilation of any such certificate or the issuance of any
such new certificate.
SECTION 7.6. RECORD DATES. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or 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, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any such other action. If no record date is fixed: (1) 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; (2) the record date
for determining stockholders entitled to express consent to
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corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the day on which the first written consent
is expressed; and (3) the record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto. 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.
ARTICLE VIII.
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization, and the words "Corporate Seal
Delaware". The seal may be used by causing it or a facsimile to be impressed or
affixed or in any other manner reproduced.
ARTICLE IX.
FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day
of December of each year, or as otherwise fixed by resolution of the Board of
Directors.
ARTICLE X.
INDEMNIFICATION
A. Every person who was or is a party or is threatened
to be made a party to or is involved in any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person or a person of whom such
person is a legal representative is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation or for its
benefit as a director, officer, employee or agent of any other corporation, or
as the representative of the Corporation in a partnership, joint venture, trust
or other entity, shall be indemnified and held harmless by the Corporation to
the fullest extent legally permissible under the General Corporation Law of the
State of Delaware, as amended from time to time, against all expenses,
liabilities and losses (including attorneys' fees, judgments, fines and amounts
paid or to be paid in settlement) reasonably paid or incurred by such person in
connection therewith. Such right of indemnification shall be a contract right
that may be enforced in any manner desired by such person. Such right of
indemnification shall include the right to be paid by the Corporation the
expenses incurred in defending any such action, suit or proceeding in advance of
its final disposition upon receipt of an undertaking by or on behalf of such
person to repay such amount if ultimately it should be determined that such
person is not entitled to be indemnified by the Corporation under the General
Corporation Law of the State of Delaware. Such right of indemnification shall
not be exclusive of any other right which such
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directors, officers or representatives may have or hereafter acquire and,
without limiting the generality of such statement, they shall be entitled to
their respective rights of indemnification under the Certificate of
Incorporation of the Corporation or any agreement, vote of stockholders,
provision of law or otherwise, as well as their rights under this Article X. Any
person or persons who, pursuant to any provisions of the Certificate of
Incorporation of the Corporation, exercises or performs any of the powers or
duties conferred or imposed upon a director of the Corporation, shall be
entitled to the indemnification rights set forth in this Article X.
B. Notwithstanding anything in this Article X to the
contrary, no person shall be indemnified in respect of any claim, action, suit
or proceeding initiated by any such person or in which any such person has
voluntarily intervened, other than an action initiated by such person to enforce
indemnification rights hereunder or an action initiated with the approval of a
majority of the Board of Directors.
C. The Board of Directors may cause the Corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation or for its benefit as a director, officer,
employee or agent of any other corporation, or as the representative of the
Corporation in a partnership, joint venture, trust or other entity, against any
expense, liability or loss asserted against or incurred by any such person in
any such capacity or arising out of such status, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss.
D. The Board of Directors may adopt further By-laws from
time to time with respect to indemnification and may amend these and such
further By-laws to provide at all times the fullest indemnification permitted by
the General Corporation Law of the State of Delaware, as amended from time to
time.
ARTICLE XI.
AMENDMENTS
These By-laws may be altered, amended or repealed by (i) the
affirmative vote of at least 66-2/3% of the members of the Board of Directors
present at a meeting at which a quorum is present, which vote shall include the
affirmative vote of at least three Institutional Directors or (ii) the
affirmative vote of at least a majority of the holders of all the issued and
outstanding shares of the Corporation's stock entitled to vote generally at a
meeting of stockholders, voting as a single class.
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