BY-LAWS
of
CHANGE TECHNOLOGY PARTNERS, INC.
A Delaware Corporation
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ARTICLE 1
DEFINITIONS
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As used in these By-laws, unless the context otherwise
requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of
the Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of
the Corporation.
1.3 "Board" means the Board of Directors of the
Corporation.
1.4 "By-laws" means the initial by-laws of the
Corporation, as amended from time to time.
1.5 "Certificate of Incorporation" means the initial
certificate of incorporation of the Corporation, as amended, supplemented or
restated from time to time.
1.6 "Chairman" means the Chairman of the Board of
Directors of the Corporation.
1.7 "Corporation" means Pangea Internet, Inc.
1.8 "Directors" means directors of the Corporation.
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1.9 "Entire Board" means all directors of the Corporation
in office, whether or not present at a meeting of the Board, but disregarding
vacancies.
1.10 "General Corporation Law" means the General
Corporation Law of the State of Delaware, as amended from time to time.
1.11 "Office of the Corporation" means the executive
office of the Corporation, anything in Section 131 of the General Corporation
Law to the contrary notwithstanding.
1.12 "President" means the President of the Corporation.
1.13 "Secretary" means the Secretary of the Corporation.
1.14 "Stockholders" means stockholders of the Corporation.
1.15 "Treasurer" means the Treasurer of the Corporation.
1.16 "Vice President" means a Vice President of the
Corporation.
ARTICLE 2
STOCKHOLDERS
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2.1 PLACE OF MEETINGS. Every meeting of Stockholders
shall be held at the office of the Corporation or at such other place within or
without the State of Delaware as shall be specified or fixed in the notice of
such meeting or in the waiver of notice thereof.
2.2 ANNUAL MEETING. A meeting of Stockholders shall be
held annually for the election of Directors and the transaction of other
business at such hour
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and on such business day as may be determined by the Board and designated in the
notice of meeting.
2.3 DEFERRED MEETING FOR ELECTION OF DIRECTORS, ETC. If
the annual meeting of Stockholders for the election of Directors and the
transaction of other business is not held within the months specified in Section
2.2 hereof, the Board shall call a meeting of Stockholders for the election of
Directors and the transaction of other business as soon thereafter as
convenient.
2.4 OTHER SPECIAL MEETINGS. A special meeting of
Stockholders (other than a special meeting for the election of Directors),
unless otherwise prescribed by statute, may be called at any time by the Board
or by the President or by the Secretary. At any special meeting of Stockholders
only such business may be transacted as is related to the purpose or purposes of
such meeting set forth in the notice thereof given pursuant to Section 2.6
hereof or in any waiver of notice thereof given pursuant to Section 2.7 hereof.
2.5 FIXING RECORD DATE. For the purpose of (a)
determining the Stockholders entitled (i) to notice of or to vote at any meeting
of Stockholders or any adjournment thereof, (ii) unless otherwise provided in
the Certificate of Incorporation to express consent to corporate action in
writing without a meeting or (iii) 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 (b) any other lawful
action, the Board may fix a record date, which record date shall
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not precede the date upon which the resolution fixing the record date was
adopted by the Board and which record date shall not be (x) in the case of
clause (a)(i) above, more than sixty nor less than ten days before the date of
such meeting, (y) in the case of clause (a)(ii) above, more than 10 days after
the date upon which the resolution fixing the record date was adopted by the
Board and (z) in the case of clause (a)(iii) or (b) above, more than sixty days
prior to such action. If no such record date is fixed:
2.5.1 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;
2.5.2 the record date for determining
stockholders entitled to express consent to corporate action in writing
without a meeting (unless otherwise provided in the Certificate of
Incorporation), when no prior action by the Board is required under the
General Corporation Law, shall be the first day on which a signed
written consent setting forth the action taken or proposed to be taken
is delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded; and when prior
action by the Board is required under the General Corporation Law, the
record date for determining
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stockholders entitled to consent to corporate action in writing without
a meeting shall be at the close of business on the date on which the
Board adopts the resolution taking such prior action; and
2.5.3 the record date for determining
stockholders for any purpose other than those specified in Sections
2.5.1 and 2.5.2 shall be at the close of business on the day on which
the Board adopts the resolution relating thereto.
When a determination of Stockholders entitled to notice of or to vote at any
meeting of Stockholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting. Delivery made to the Corporation's
registered office in accordance with Section 2.5.2 shall be by hand or by
certified or registered mail, return receipt requested.
2.6 NOTICE OF MEETINGS OF STOCKHOLDERS. Except as
otherwise provided in Sections 2.5 and 2.7 hereof, whenever under the provisions
of any statute, the Certificate of Incorporation or these By-laws, Stockholders
are required or permitted to take any action at a meeting, written notice shall
be given stating 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 provided by any statute, the Certificate of Incorporation or these
By-laws, a copy of the notice of any meeting shall be given, personally or by
mail, not less than ten nor more than sixty days before
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the date of the meeting, to each Stockholder entitled to notice of or to vote at
such meeting. If mailed, such notice shall be deemed to be given when deposited
in the United States mail, with postage prepaid, directed to the Stockholder at
his or her address as it appears on the records of the Corporation. An affidavit
of the Secretary or an Assistant Secretary or of the transfer agent of the
Corporation that the notice required by this Section 2.6 has been given shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
When a meeting is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted at the meeting as
originally called. If, however, 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.
2.7 WAIVERS OF NOTICE. Whenever the giving of any notice
is required by statute, the Certificate of Incorporation or these By-laws, a
waiver thereof, in writing, signed by the Stockholder or Stockholders entitled
to said notice, whether before or after the event as to which such notice is
required, shall be deemed equivalent to notice. Attendance by a Stockholder at a
meeting shall constitute a waiver of notice of such meeting except when the
Stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the
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ground that the meeting has not been lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the Stockholders need be specified in any written waiver of notice unless so
required by statute, the Certificate of Incorporation or these By-laws.
2.8 LIST OF STOCKHOLDERS. The Secretary shall prepare and
make, or cause to be prepared and made, 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, the Stockholder's
agent, or attorney, at the Stockholder's expense, 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 city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any Stockholder who is present. The Corporation
shall maintain the Stockholder list in written form or in another form capable
of conversion into written form within a reasonable time. Upon the willful
neglect or refusal of the Directors to produce such a list at any meeting for
the election of Directors, they shall be ineligible for election to any office
at such meeting. The stock ledger shall be the only evidence as to who are the
Stockholders
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entitled to examine the stock ledger, the list of Stockholders or the books of
the Corporation, or to vote in person or by proxy at any meeting of
Stockholders.
2.9 QUORUM OF STOCKHOLDERS; ADJOURNMENT. Except as
otherwise provided by any statute, the Certificate of Incorporation or these
By-laws, the holders of one-third of all outstanding shares of stock entitled to
vote at any meeting of Stockholders, present in person or represented by proxy,
shall constitute a quorum for the transaction of any business at such meeting.
When a quorum is once present to organize a meeting of Stockholders, it is not
broken by the subsequent withdrawal of any Stockholders. The holders of a
majority of the shares of stock present in person or represented by proxy at any
meeting of Stockholders, including an adjourned meeting, whether or not a quorum
is present, may adjourn such meeting to another time and place. Shares of its
own stock belonging 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, 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.
2.10 VOTING; PROXIES. Unless otherwise provided in the
Certificate of Incorporation, every Stockholder of record shall be entitled at
every meeting of Stockholders to one vote for each share of capital stock
standing in his or her name on the record of Stockholders determined in
accordance with Section 2.5 hereof. If the
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Certificate of Incorporation provides for more or less than one vote for any
share on any matter, each reference in the By-laws or the General Corporation
Law to a majority or other proportion of stock shall refer to such majority or
other proportion of the votes of such stock. The provisions of Sections 212 and
217 of the General Corporation Law shall apply in determining whether any shares
of capital stock may be voted and the persons, if any, entitled to vote such
shares; but the Corporation shall be protected in assuming that the persons in
whose names shares of capital stock stand on the stock ledger of the Corporation
are entitled to vote such shares. Holders of redeemable shares of stock are not
entitled to vote after the notice of redemption is mailed to such holders and a
sum sufficient to redeem the stocks has been deposited with a bank, trust
company, or other financial institution under an irrevocable obligation to pay
the holders the redemption price on surrender of the shares of stock. At any
meeting of Stockholders (at which a quorum was present to organize the meeting),
all matters, except as otherwise provided by statute or by the Certificate of
Incorporation or by these By-laws, shall be decided by a majority of the votes
cast at such meeting by the holders of shares present in person or represented
by proxy and entitled to vote thereon, whether or not a quorum is present when
the vote is taken. All elections of Directors shall be by written ballot unless
otherwise provided in the Certificate of Incorporation. In voting on any other
question on which a vote by ballot is required by law or is demanded by any
Stockholder entitled to vote, the voting shall be by ballot. Each ballot shall
be signed by the Stockholder voting or the
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Stockholder's proxy and shall state the number of shares voted. On all other
questions, the voting may be VIVA VOCE. 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. The validity and enforceability of any proxy shall be
determined in accordance with Section 212 of the General Corporation Law. A
Stockholder may revoke any proxy that is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary.
2.11 VOTING PROCEDURES AND INSPECTORS OF ELECTION AT
MEETINGS OF STOCKHOLDERS. The Board, in advance of any meeting of Stockholders,
may appoint one or more inspectors to act at the meeting and make a written
report thereof. The Board may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate has been appointed or is able to act at a meeting, the person
presiding at the meeting may appoint, and on the request of any Stockholder
entitled to vote thereat 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 (a) ascertain the number of shares outstanding and
the voting power of each, (b) determine the shares represented at the meeting
and the validity of proxies and ballots, (c) count all votes
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and ballots, (d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(e) 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 or entities to assist the inspectors in the performance of
their duties. Unless otherwise provided by the Board, the date and time of the
opening and the closing of the polls for each matter upon which the Stockholders
will vote at a meeting shall be determined by the person presiding at the
meeting and shall be announced at the meeting. No ballot, proxies or votes, or
any revocation thereof or change thereto, shall be accepted by the inspectors
after the closing of the polls unless the Court of Chancery of the State of
Delaware upon application by a Stockholder shall determine otherwise.
2.12 ORGANIZATION. At each meeting of Stockholders, the
President, or in the absence of the President, the Chairman, or if there is no
Chairman or if there be one and the Chairman is absent, a Vice President, and in
case more than one Vice President shall be present, that Vice President
designated by the Board (or in the absence of any such designation, the most
senior Vice President, based on age, present), shall act as chairman of the
meeting. The Secretary, or in his or her absence, one of the Assistant
Secretaries, shall act as secretary of the meeting. In case none of the officers
above designated to act as chairman or secretary of the meeting, respectively,
shall be present, a chairman or a secretary of the meeting, as the case may be,
shall be chosen by a majority of the votes cast at such meeting by the holders
of
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shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.13 ORDER OF BUSINESS. The order of business at all
meetings of Stockholders shall be as determined by the chairman of the meeting,
but the order of business to be followed at any meeting at which a quorum is
present may be changed by a majority of the votes cast at such meeting by the
holders of shares of capital stock present in person or represented by proxy and
entitled to vote at the meeting.
2.14 WRITTEN CONSENT OF STOCKHOLDERS WITHOUT A MEETING.
Unless otherwise provided in the Certificate of Incorporation, any action
required by the General Corporation Law to be taken at any annual or special
meeting of stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted and shall be delivered (by hand or by certified or registered mail,
return receipt requested) to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Every written consent shall bear the date
of signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless,
within 60 days of the
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earliest dated consent delivered in the manner required by this Section 2.14,
written consents signed by a sufficient number of holders to take action are
delivered to the Corporation as aforesaid. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those Stockholders who have not consented in writing.
ARTICLE 3
DIRECTORS
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3.1 GENERAL POWERS. Except as otherwise provided in the
Certificate of Incorporation, the business and affairs of the Corporation shall
be managed by or under the direction of the Board. The Board may adopt such
rules and regulations, not inconsistent with the Certificate of Incorporation or
these By-laws or applicable laws, as it may deem proper for the conduct of its
meetings and the management of the Corporation. In addition to the powers
expressly conferred by these By-laws, the Board may exercise all powers and
perform all acts that are not required, by these By- laws or the Certificate of
Incorporation or by statute, to be exercised and performed by the Stockholders.
3.2 NUMBER; QUALIFICATION; TERM OF OFFICE. The Board
shall consist of one or more members. The number of Directors shall be fixed
initially by the incorporator and may thereafter be changed from time to time by
action of the stockholders or by action of the Board. Directors need not be
stockholders. Each
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Director shall hold office until a successor is elected and qualified or until
the Director's death, resignation or removal.
3.3 ELECTION. Directors shall, except as otherwise
required by statute or by the Certificate of Incorporation, be elected by a
plurality of the votes cast at a meeting of stockholders by the holders of
shares entitled to vote in the election.
3.4 NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Unless
otherwise provided in the Certificate of Incorporation, newly created
Directorships resulting from an increase in the number of Directors and
vacancies occurring in the Board for any other reason, including the removal of
Directors without cause, may be filled by the affirmative votes of a majority of
the entire Board, although less than a quorum, or by a sole remaining Director,
or may be elected by a plurality of the votes cast by the holders of shares of
capital stock entitled to vote in the election at a special meeting of
stockholders called for that purpose. A Director elected to fill a vacancy shall
be elected to hold office until a successor is elected and qualified, or until
the Director's earlier death, resignation or removal.
3.5 RESIGNATION. Any Director may resign at any time by
written notice to the Corporation. Such resignation shall take effect at the
time therein specified, and, unless otherwise specified in such resignation, the
acceptance of such resignation shall not be necessary to make it effective.
3.6 REMOVAL. Subject to the provisions of Section 141(k)
of the General Corporation Law, any or all of the Directors may be removed with
or without
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cause by vote of the holders of a majority of the shares then entitled to vote
at an election of Directors.
3.7 COMPENSATION. Each Director, in consideration of his
or her service as such, shall be entitled to receive from the Corporation such
amount per annum or such fees for attendance at Directors' meetings, or both, as
the Board may from time to time determine, together with reimbursement for the
reasonable out-of- pocket expenses, if any, incurred by such Director in
connection with the performance of his or her duties. Each Director who shall
serve as a member of any committee of Directors in consideration of serving as
such shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board may from time to time
determine, together with reimbursement for the reasonable out-of-pocket
expenses, if any, incurred by such Director in the performance of his or her
duties. Nothing contained in this Section 3.7 shall preclude any Director from
serving the Corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
3.8 TIMES AND PLACES OF MEETINGS. The Board may hold
meetings, both regular and special, either within or without the State of
Delaware. The times and places for holding meetings of the Board may be fixed
from time to time by resolution of the Board or (unless contrary to a resolution
of the Board) in the notice of the meeting.
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3.9 ANNUAL MEETINGS. On the day when and at the place
where the annual meeting of stockholders for the election of Directors is held,
and as soon as practicable thereafter, the Board may hold its annual meeting,
without notice of such meeting, for the purposes of organization, the election
of officers and the transaction of other business. The annual meeting of the
Board may be held at any other time and place specified in a notice given as
provided in Section 3.11 hereof for special meetings of the Board or in a waiver
of notice thereof.
3.10 REGULAR MEETINGS. Regular meetings of the Board may
be held without notice at such times and at such places as shall from time to
time be determined by the Board.
3.11 SPECIAL MEETINGS. Special meetings of the Board may
be called by the Chairman, the President or the Secretary or by any two or more
Directors then serving on at least one day's notice to each Director given by
one of the means specified in Section 3.14 hereof other than by mail, or on at
least three days' notice if given by mail. Special meetings shall be called by
the Chairman, President or Secretary in like manner and on like notice on the
written request of any two or more of the Directors then serving.
3.12 TELEPHONE MEETINGS. Directors or members of any
committee designated by the Board may participate in a meeting of the Board 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
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participation in a meeting pursuant to this Section 3.12 shall constitute
presence in person at such meeting.
3.13 ADJOURNED MEETINGS. A majority of the Directors
present at any meeting of the Board, including an adjourned meeting, whether or
not a quorum is present, may adjourn such meeting to another time and place. At
least one day's notice of any adjourned meeting of the Board shall be given to
each Director whether or not present at the time of the adjournment, if such
notice shall be given by one of the means specified in Section 3.14 hereof other
than by mail, or at least three days' notice if by mail. Any business may be
transacted at an adjourned meeting that might have been transacted at the
meeting as originally called.
3.14 NOTICE PROCEDURE. Subject to Sections 3.11 and 3.15
hereof, whenever, under the provisions of any statute, the Certificate of
Incorporation or these By-laws, notice is required to be given to any Director,
such notice shall be deemed given effectively if given in person or by
telephone, by mail addressed to such Director at such Director's address as it
appears on the records of the Corporation, with postage thereon prepaid, or by
telegram, telex, telecopy or similar means addressed as aforesaid.
3.15 WAIVER OF NOTICE. Whenever the giving of any notice
is required by statute, the Certificate of Incorporation or these By-laws, a
waiver thereof, in writing, signed by the person or persons entitled to said
notice, whether before or after the event as to which such notice is required,
shall be deemed equivalent to notice.
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Attendance by 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
on the ground that the meeting has not been lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Directors or a committee of Directors need be specified in any
written waiver of notice unless so required by statute, the Certificate of
Incorporation or these By-laws.
3.16 ORGANIZATION. At each meeting of the Board, the
Chairman, or in the absence of the Chairman, the President, or in the absence of
the President, a chairman chosen by a majority of the Directors present, shall
preside. The Secretary shall act as secretary at each meeting of the Board. In
case the Secretary shall be absent from any meeting of the Board, an Assistant
Secretary shall perform the duties of secretary at such meeting; and in the
absence from any such meeting of the Secretary and all Assistant Secretaries,
the person presiding at the meeting may appoint any person to act as secretary
of the meeting.
3.17 QUORUM OF DIRECTORS. The presence in person of a
majority of the entire Board shall be necessary and sufficient to constitute a
quorum for the transaction of business at any meeting of the Board, but a
majority of a smaller number may adjourn any such meeting to a later date.
3.18 ACTION BY MAJORITY VOTE. Except as otherwise
expressly required by statute, the Certificate of Incorporation or these
By-laws, the act of a majority of the
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Directors present at a meeting at which a quorum is present shall be the act of
the Board.
3.19 ACTION WITHOUT MEETING. Unless otherwise restricted
by the Certificate of Incorporation or these By-laws, any action required or
permitted to be taken at any meeting of the Board or of any committee thereof
may be taken without a meeting if all Directors or members of such committee, as
the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board or committee.
ARTICLE 4
COMMITTEES OF THE BOARD
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The Board may, by resolution passed by a vote of a majority of
the entire Board, designate one or more 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 such committee. If a member of a
committee shall be absent from any meeting, or disqualified from voting thereat,
the remaining member or members present and not disqualified from voting,
whether or not such member or members constitute a quorum, may, by a unanimous
vote, 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 passed as aforesaid, shall have and may
exercise all the powers and authority
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of the Board in the management of the business and affairs of the Corporation,
and may authorize the seal of the Corporation to be impressed on all papers that
may require it, but no such committee shall have the power or authority of the
Board in reference to amending the Certificate of Incorporation, adopting an
agreement of merger or consolidation under section 251 or section 252 of the
General Corporation Law, recommending to the stockholders (a) the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
or (b) a dissolution of the Corporation or a revocation of a dissolution, or
amending the By-laws of the Corporation; and, unless the resolution designating
it expressly so provides, no such committee shall have the power and authority
to declare a dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of the General
Corporation Law. Unless otherwise specified in the resolution of the Board
designating a committee, at all meetings of such committee a majority of the
total number of members of the committee shall constitute a quorum for the
transaction of business, and the vote of a majority of the members of the
committee present at any meeting at which there is a quorum shall be the act of
the committee. Each committee shall keep regular minutes of its meetings. Unless
the Board otherwise provides, each committee designated by the Board may make,
alter and repeal rules for the conduct of its business. In the absence of such
rules each committee shall conduct its business in the same manner as the Board
conducts its business pursuant to Article 3 of these By- laws.
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ARTICLE 5
OFFICERS
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5.1 POSITIONS. The officers of the Corporation shall be a
President, a Secretary, a Treasurer and such other officers as the Board may
appoint, including a Chairman, one or more Vice Presidents and one or more
Assistant Secretaries and Assistant Treasurers, who shall exercise such powers
and perform such duties as shall be determined from time to time by the Board.
The Board may designate one or more Vice Presidents as Executive Vice Presidents
and may use descriptive words or phrases to designate the standing, seniority or
areas of special competence of the Vice Presidents elected or appointed by it.
Any number of offices may be held by the same person unless the Certificate of
Incorporation or these By-laws otherwise provide.
5.2 APPOINTMENT. The officers of the Corporation shall be
chosen by the Board at its annual meeting or at such other time or times as the
Board shall determine.
5.3 COMPENSATION. The compensation of all officers of the
Corporation shall be fixed by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that the officer
is also a Director.
5.4 TERM OF OFFICE. Each officer of the Corporation shall
hold office for the term for which he or she is elected and until such officer's
successor is chosen and qualifies or until such officer's earlier death,
resignation or removal. Any officer may resign at any time upon written notice
to the Corporation. Such resignation shall
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take effect at the date of receipt of such notice or at such later time as is
therein specified, and, unless otherwise specified, the acceptance of such
resignation shall not be necessary to make it effective. The resignation of an
officer shall be without prejudice to the contract rights of the Corporation, if
any. Any officer elected or appointed by the Board may be removed at any time,
with or without cause, by vote of a majority of the entire Board. Any vacancy
occurring in any office of the Corporation shall be filled by the Board. The
removal of an officer without cause shall be without prejudice to the officer's
contract rights, if any. The election or appointment of an officer shall not of
itself create contract rights.
5.5 FIDELITY BONDS. The Corporation may secure the
fidelity of any or all of its officers or agents by bond or otherwise.
5.6 CHAIRMAN. The Chairman, if one shall have been
appointed, shall preside at all meetings of the Board and shall exercise such
powers and perform such other duties as shall be determined from time to time by
the Board.
5.7 PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation and shall have general supervision over the business
of the Corporation, subject, however, to the control of the Board and of any
duly authorized committee of Directors. The President shall preside at all
meetings of the Stockholders and at all meetings of the Board at which the
Chairman (if there be one) is not present. The President may sign and execute in
the name of the Corporation deeds, mortgages, bonds, contracts and other
instruments except in cases in which the signing and
<PAGE>
23
execution thereof shall be expressly delegated by the Board or by these By-laws
to some other officer or agent of the Corporation or shall be required by
statute otherwise to be signed or executed and, in general, the President shall
perform all duties incident to the office of President of a corporation and such
other duties as may from time to time be assigned to the President by the Board.
5.8 VICE PRESIDENTS. At the request of the President, or,
in the President's absence, at the request of the Board, the Vice Presidents
shall (in such order as may be designated by the Board, or, in the absence of
any such designation, in order of seniority based on age) perform all of the
duties of the President and, in so performing, shall have all the powers of, and
be subject to all restrictions upon, the President. Any Vice President may sign
and execute in the name of the Corporation deeds, mortgages, bonds, contracts or
other instruments, except in cases in which the signing and execution thereof
shall be expressly delegated by the Board or by these By- laws to some other
officer or agent of the Corporation, or shall be required by statute otherwise
to be signed or executed, and each Vice President shall perform such other
duties as from time to time may be assigned to such Vice President by the Board
or by the President.
5.9 SECRETARY. The Secretary shall attend all meetings of
the Board and of the Stockholders and shall record all the proceedings of the
meetings of the Board and of the stockholders in a book to be kept for that
purpose, and shall perform like duties for committees of the Board, when
required. The Secretary shall give, or
<PAGE>
24
cause to be given, notice of all special meetings of the Board and of the
stockholders and shall perform such other duties as may be prescribed by the
Board or by the President, under whose supervision the Secretary shall be. The
Secretary shall have custody of the corporate seal of the Corporation, and the
Secretary, or an Assistant Secretary, shall have authority to impress the same
on any instrument requiring it, and when so impressed the seal may be attested
by the signature of the Secretary or by the signature of such Assistant
Secretary. The Board may give general authority to any other officer to impress
the seal of the Corporation and to attest the same by such officer's signature.
The Secretary or an Assistant Secretary may also attest all instruments signed
by the President or any Vice President. The Secretary shall have charge of all
the books, records and papers of the Corporation relating to its organization
and management, shall see that the reports, statements and other documents
required by statute are properly kept and filed and, in general, shall perform
all duties incident to the office of Secretary of a corporation and such other
duties as may from time to time be assigned to the Secretary by the Board or by
the President.
5.10 TREASURER. The Treasurer shall have charge and
custody of, and be responsible for, all funds, securities and notes of the
Corporation; receive and give receipts for moneys due and payable to the
Corporation from any sources whatsoever; deposit all such moneys and valuable
effects in the name and to the credit of the Corporation in such depositaries as
may be designated by the Board; against proper vouchers, cause such funds to be
disbursed by checks or drafts on the authorized
<PAGE>
25
depositaries of the Corporation signed in such manner as shall be determined by
the Board and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books or other records
maintained for the purpose full and adequate account of all moneys received or
paid for the account of the Corporation; have the right to require from time to
time reports or statements giving such information as the Treasurer may desire
with respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President or the Board,
whenever the President or the Board shall require the Treasurer so to do, an
account of the financial condition of the Corporation and of all financial
transactions of the Corporation; exhibit at all reasonable times the records and
books of account to any of the Directors upon application at the office of the
Corporation where such records and books are kept; disburse the funds of the
Corporation as ordered by the Board; and, in general, perform all duties
incident to the office of Treasurer of a corporation and such other duties as
may from time to time be assigned to the Treasurer by the Board or the
President.
5.11 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS.
Assistant Secretaries and Assistant Treasurers shall perform such duties as
shall be assigned to them by the Secretary or by the Treasurer, respectively, or
by the Board or by the President.
<PAGE>
26
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
----------------------------------------------
6.1 EXECUTION OF CONTRACTS. The Board, except as
otherwise provided in these By-laws, may prospectively or retroactively
authorize any officer or officers, employee or employees or agent or agents, in
the name and on behalf of the Corporation, to enter into any contract or execute
and deliver any instrument, and any such authority may be general or confined to
specific instances, or otherwise limited.
6.2 LOANS. The Board may prospectively or retroactively
authorize the President or any other officer, employee or agent of the
Corporation to effect loans and advances at any time for the Corporation from
any bank, trust company or other institution, or from any firm, corporation or
individual, and for such loans and advances the person so authorized may make,
execute and deliver promissory notes, bonds or other certificates or evidences
of indebtedness of the Corporation, and, when authorized by the Board so to do,
may pledge and hypothecate or transfer any securities or other property of the
Corporation as security for any such loans or advances. Such authority conferred
by the Board may be general or confined to specific instances, or otherwise
limited.
6.3 CHECKS, DRAFTS, ETC. All checks, drafts and other
orders for the payment of money out of the funds of the Corporation and all
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board.
<PAGE>
27
6.4 DEPOSITS. The funds of the Corporation not otherwise
employed shall be deposited from time to time to the order of the Corporation
with such banks, trust companies, investment banking firms, financial
institutions or other depositaries as the Board may select or as may be selected
by an officer, employee or agent of the Corporation to whom such power to select
may from time to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
-------------------
7.1 CERTIFICATES REPRESENTING SHARES. The shares of
capital stock of the Corporation shall be represented by certificates in such
form (consistent with the provisions of Section 158 of the General Corporation
Law) as shall be approved by the Board. Such certificates shall be signed by the
Chairman, the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer, and may be impressed with
the seal of the Corporation or a facsimile thereof. The signatures of the
officers upon a certificate may be facsimiles, if the certificate is
countersigned by a transfer agent or registrar other than the Corporation itself
or its employee. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon any certificate shall have
ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may, unless otherwise ordered by the Board, be
issued by the
<PAGE>
28
Corporation with the same effect as if such person were such officer, transfer
agent or registrar at the date of issue.
7.2 TRANSFER OF SHARES. Transfers of shares of capital
stock of the Corporation shall be made only on the books of the Corporation by
the holder thereof or by the holder's duly authorized attorney appointed by a
power of attorney duly executed and filed with the Secretary or a transfer agent
of the Corporation, and on surrender of the certificate or certificates
representing such shares of capital stock properly endorsed for transfer and
upon payment of all necessary transfer taxes. Every certificate exchanged,
returned or surrendered to the Corporation shall be marked "Cancelled," with the
date of cancellation, by the Secretary or an Assistant Secretary or the transfer
agent of the Corporation. A person in whose name shares of capital stock shall
stand on the books of the Corporation shall be deemed the owner thereof to
receive dividends, to vote as such owner and for all other purposes as respects
the Corporation. No transfer of shares of capital stock shall be valid as
against the Corporation, its stockholders and creditors for any purpose, except
to render the transferee liable for the debts of the Corporation to the extent
provided by law, until such transfer shall have been entered on the books of the
Corporation by an entry showing from and to whom transferred.
7.3 TRANSFER AND REGISTRY AGENTS. The Corporation may
from time to time maintain one or more transfer offices or agents and registry
offices or agents at such place or places as may be determined from time to time
by the Board.
<PAGE>
29
7.4 LOST, DESTROYED, STOLEN AND MUTILATED CERTIFICATES.
The holder of any shares of capital stock of the Corporation shall immediately
notify the Corporation of any loss, destruction, theft or mutilation of the
certificate representing such shares, and the Corporation may issue a new
certificate to replace the certificate alleged to have been lost, destroyed,
stolen or mutilated. The Board may, in its discretion, as a condition to the
issue of any such new certificate, require the owner of the lost, destroyed,
stolen or mutilated certificate, or his or her legal representatives, to make
proof satisfactory to the Board of such loss, destruction, theft or mutilation
and to advertise such fact in such manner as the Board may require, and to give
the Corporation and its transfer agents and registrars, or such of them as the
Board may require, a bond in such form, in such sums and with such surety or
sureties as the Board may direct, to indemnify the Corporation and its transfer
agents and registrars against any claim that may be made against any of them on
account of the continued existence of any such certificate so alleged to have
been lost, destroyed, stolen or mutilated and against any expense in connection
with such claim.
7.5 RULES AND REGULATIONS. The Board may make such rules
and regulations as it may deem expedient, not inconsistent with these By-laws or
with the Certificate of Incorporation, concerning the issue, transfer and
registration of certificates representing shares of its capital stock.
7.6 RESTRICTION ON TRANSFER OF STOCK. A written
restriction on the transfer or registration of transfer of capital stock of the
Corporation, if permitted by
<PAGE>
30
Section 202 of the General Corporation Law and noted conspicuously on the
certificate representing such capital stock, may be enforced against the holder
of the restricted capital stock or any successor or transferee of the holder,
including an executor, administrator, trustee, guardian or other fiduciary
entrusted with like responsibility for the person or estate of the holder.
Unless noted conspicuously on the certificate representing such capital stock,
a restriction, even though permitted by Section 202 of the General Corporation
Law, shall be ineffective except against a person with actual knowledge of the
restriction. A restriction on the transfer or registration of transfer of
capital stock of the Corporation may be imposed either by the Certificate of
Incorporation or by an agreement among any number of stockholders or among such
stockholders and the Corporation. No restriction so imposed shall be binding
with respect to capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an agreement or voted in
favor of the restriction.
7.7 DIVIDENDS, SURPLUS, ETC. Subject to the provisions of
the Certificate of Incorporation and of law, the Board:
7.7.1 may declare and pay dividends or
make other distributions on the outstanding shares of capital stock in
such amounts and at such time or times as it, in its discretion, shall
deem advisable giving due consideration to the condition of the affairs
of the Corporation;
7.7.2 may use and apply, in its
discretion, any of the surplus of the Corporation in purchasing or
acquiring any shares of capital stock
<PAGE>
31
of the Corporation, or purchase warrants therefor, in accordance with
law, or any of its bonds, debentures, notes, scrip or other securities
or evidences of indebtedness; and
7.7.3 may set aside from time to time out
of such surplus or net profits such sum or sums as, in its discretion,
it may think proper, as a reserve fund to meet contingencies, or for
equalizing dividends or for the purpose of maintaining or increasing
the property or business of the Corporation, or for any purpose it may
think conducive to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
---------------
8.1 INDEMNITY UNDERTAKING. To the extent not prohibited
by law, the Corporation shall indemnify any person who is or was made, or
threatened to be made, a party to any threatened, pending or completed action,
suit or proceeding (a "Proceeding"), whether civil, criminal, administrative or
investigative, including, without limitation, an action by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
such person, or a person of whom such person is the legal representative, is or
was a Director or officer of the Corporation, or, at the request of the
Corporation, is or was serving as a director or officer of any other corporation
or in a capacity with comparable authority or responsibilities for any
partnership, joint venture, trust, employee benefit plan or other enterprise (an
"Other
<PAGE>
32
Entity"), against judgments, fines, penalties, excise taxes, amounts paid in
settlement and costs, charges and expenses (including attorneys' fees,
disbursements and other charges). Persons who are not directors or officers of
the Corporation (or otherwise entitled to indemnification pursuant to the
preceding sentence) may be similarly indemnified in respect of service to the
Corporation or to an Other Entity at the request of the Corporation to the
extent the Board at any time specifies that such persons are entitled to the
benefits of this Article 8.
8.2 ADVANCEMENT OF EXPENSES. The Corporation shall, from
time to time, reimburse or advance to any Director or officer or other person
entitled to indemnification hereunder the funds necessary for payment of
expenses, including attorneys' fees and disbursements, incurred in connection
with any Proceeding, in advance of the final disposition of such Proceeding;
PROVIDED, HOWEVER, that, if required by the General Corporation Law, such
expenses incurred by or on behalf of any Director or officer or other person may
be paid in advance of the final disposition of a Proceeding only upon receipt by
the Corporation of an undertaking, by or on behalf of such Director or officer
(or other person indemnified hereunder), to repay any such amount so advanced if
it shall ultimately be determined by final judicial decision from which there is
no further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 RIGHTS NOT EXCLUSIVE. The rights to indemnification
and reimbursement or advancement of expenses provided by, or granted pursuant
to, this
<PAGE>
33
Article 8 shall not be deemed exclusive of any other rights to which a person
seeking indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, the Certificate of Incorporation, these
By-laws, any agreement, any vote of stockholders or disinterested Directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
8.4 CONTINUATION OF BENEFITS. The rights to
indemnification and reimbursement or advancement of expenses provided by, or
granted pursuant to, this Article 8 shall continue as to a person who has ceased
to be a Director or officer (or other person indemnified hereunder) and shall
inure to the benefit of the executors, administrators, legatees and distributees
of such person.
8.5 INSURANCE. The Corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee or agent of an
Other Entity, against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of this Article 8, the
Certificate of Incorporation or under section 145 of the General Corporation Law
or any other provision of law.
<PAGE>
34
8.6 BINDING EFFECT. The provisions of this Article 8
shall be a contract between the Corporation, on the one hand, and each Director
and officer who serves in such capacity at any time while this Article 8 is in
effect and any other person entitled to indemnification hereunder, on the other
hand, pursuant to which the Corporation and each such Director, officer or other
person intend to be, and shall be legally bound. No repeal or modification of
this Article 8 shall affect any rights or obligations with respect to any state
of facts then or theretofore existing or thereafter arising or any proceeding
theretofore or thereafter brought or threatened based in whole or in part upon
any such state of facts.
8.7 PROCEDURAL RIGHTS. The rights to indemnification and
reimbursement or advancement of expenses provided by, or granted pursuant to,
this Article 8 shall be enforceable by any person entitled to such
indemnification or reimbursement or advancement of expenses in any court of
competent jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board of
Directors, its independent legal counsel and its stockholders) to have made a
determination prior to the commencement of such action that such indemnification
or reimbursement or advancement of expenses is proper in the circumstances nor
an actual determination by the Corporation (including its Board of Directors,
its independent legal counsel and its stockholders) that such person is not
entitled to such indemnification or reimbursement or advancement of expenses
shall
<PAGE>
35
constitute a defense to the action or create a presumption that such person is
not so entitled. Such a person shall also be indemnified for any expenses
incurred in connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
8.8 SERVICE DEEMED AT CORPORATION'S REQUEST. Any Director
or officer of the Corporation serving in any capacity (a) another corporation of
which a majority of the shares entitled to vote in the election of its directors
is held, directly or indirectly, by the Corporation or (b) any employee benefit
plan of the Corporation or any corporation referred to in clause (a) shall be
deemed to be doing so at the request of the Corporation.
8.9 ELECTION OF APPLICABLE LAW. Any person entitled to be
indemnified or to reimbursement or advancement of expenses as a matter of right
pursuant to this Article 8 may elect to have the right to indemnification or
reimbursement or advancement of expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or events
giving rise to the applicable Proceeding, to the extent permitted by law, or on
the basis of the applicable law in effect at the time such indemnification or
reimbursement or advancement of expenses is sought. Such election shall be made,
by a notice in writing to the Corporation, at the time indemnification or
reimbursement or advancement of expenses is sought; PROVIDED, HOWEVER, that if
no such notice is given, the right to indemnification or reimbursement
<PAGE>
36
or advancement of expenses shall be determined by the law in effect at the time
indemnification or reimbursement or advancement of expenses is sought.
ARTICLE 9
BOOKS AND RECORDS
-----------------
9.1 BOOKS AND RECORDS. There shall be kept at the
principal office of the Corporation correct and complete records and books of
account recording the financial transactions of the Corporation and minutes of
the proceedings of the stockholders, the Board and any committee of the Board.
The Corporation shall keep at its principal office, or at the office of the
transfer agent or registrar of the Corporation, a record containing the names
and addresses of all stockholders, the number and class of shares held by each
and the dates when they respectively became the owners of record thereof.
9.2 FORM OF RECORDS. Any records maintained by the
Corporation in 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 written 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.
9.3 INSPECTION OF BOOKS AND RECORDS. Except as otherwise
provided by law, the Board shall determine from time to time whether, and, if
allowed, when
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37
and under what conditions and regulations, the accounts, books, minutes and
other records of the Corporation, or any of them, shall be open to the
stockholders for inspection.
ARTICLE 10
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 thereof to be
impressed or affixed or otherwise reproduced.
ARTICLE 11
FISCAL YEAR
-----------
The fiscal year of the Corporation shall be fixed, and may be
changed, by resolution of the Board.
ARTICLE 12
PROXIES AND CONSENTS
--------------------
Unless otherwise directed by the Board, the Chairman, the
President, any Vice President, the Secretary or the Treasurer, or any one of
them, may execute and deliver on behalf of the Corporation proxies respecting
any and all shares or other ownership interests of any Other Entity owned by the
Corporation appointing such person or persons as the officer executing the same
shall deem proper to represent and
<PAGE>
38
vote the shares or other ownership interests so owned at any and all meetings of
holders of shares or other ownership interests, whether general or special,
and/or to execute and deliver consents respecting such shares or other ownership
interests; or any of the aforesaid officers may attend any meeting of the
holders of shares or other ownership interests of such Other Entity and thereat
vote or exercise any or all other powers of the Corporation as the holder of
such shares or other ownership interests.
ARTICLE 13
EMERGENCY BY-LAWS
-----------------
Unless the Certificate of Incorporation provides otherwise,
the following provisions of this Article 13 shall be effective during an
emergency, which is defined as when a quorum of the Corporation's Directors
cannot be readily assembled because of some catastrophic event. During such
emergency:
13.1 NOTICE TO BOARD MEMBERS. Any one member of the Board
or any one of the following officers: Chairman, President, any Vice President,
Secretary, or Treasurer, may call a meeting of the Board. Notice of such meeting
need be given only to those Directors whom it is practicable to reach, and may
be given in any practical manner, including by publication and radio. Such
notice shall be given at least six hours prior to commencement of the meeting.
13.2 TEMPORARY DIRECTORS AND QUORUM. One or more officers
of the Corporation present at the emergency Board meeting, as is necessary to
achieve a quorum, shall be considered to be Directors for the meeting, and shall
so serve in order
<PAGE>
39
of rank, and within the same rank, in order of seniority. In the event that less
than a quorum of the Directors are present (including any officers who are to
serve as Directors for the meeting), those Directors present (including the
officers serving as Directors) shall constitute a quorum.
13.3 ACTIONS PERMITTED TO BE TAKEN. The Board as
constituted in Section 13.2, and after notice as set forth in Section 13.1 may:
13.3.1 prescribe emergency powers to any officer of
the Corporation;
13.3.2 delegate to any officer or Director, any of
the powers of the Board;
13.3.3 designate lines of succession of officers
and agents, in the event that any of them are unable to discharge their
duties;
13.3.4 relocate the principal place of business, or
designate successive or simultaneous principal places of business; and
13.3.5 take any other convenient, helpful or
necessary action to carry on the business of the Corporation.
ARTICLE 14
AMENDMENTS
----------
These By-laws may be amended or repealed and new By-laws may
be adopted by a vote of the holders of shares entitled to vote in the election
of Directors or
<PAGE>
40
by the Board. Any By-laws adopted or amended by the Board may be amended or
repealed by the Stockholders entitled to vote thereon.
