Adopted: October 31, 1996
Article I, Section 1.02 amended: June 20, 2000
Article VII, Section 7.02 amended: June 20, 2000
BYLAWS
for the regulation, except as otherwise provided by statute or the Certificate
of Incorporation
of
OVERSEAS FILMGROUP, INC.
(formerly known as ENTERTAINMENT/MEDIA ACQUISITION CORPORATION)
ARTICLE I
General Provisions
Section 1.01 Principal Executive Office
The registered office of the corporation shall be located at 1013 Centre
Road, Wilmington, Delaware 19805. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the corporation may
require.
Section 1.02 Number of Directors
The affairs of the corporation shall be managed by a Board of Directors
(the "Board") consisting of nine (9) directors, such number of directors to be
increased or decreased by resolution of the Board in their sole and absolute
discretion. Directors need not be Stockholders or citizens or residents of the
United States.
Section 1.03 Registration of Shares
The corporation shall recognize each person registered in its stock ledger
as the exclusive owner and holder of the shares registered in his or her name as
the "Stockholder" for all purposes hereunder with the exclusive rights inter
alia to vote the shares, to receive dividends declared with respect to the
shares, to transfer the shares to others, and to exercise any other rights of
Stockholders. The corporation shall have no obligation to recognize any
equitable or other claim or interest in any shares on the part of any person or
persons other than the registered owner, as set forth in the stock ledger,
whether or not the corporation shall have any notice thereof, except as may
otherwise be provided by the laws of the State of Delaware. "Shares" for
purposes hereof, shall mean shares of the corporation's stock authorized by its
Certificate of Incorporation and registered in the stock ledger as issued and
outstanding, including any one or more classes of stock so authorized, and
whether or not such share is deemed to have voting or other privileges.
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ARTICLE II
Shares and Stockholders
Section 2.01 Share Certificates
A. In General
The corporation shall issue a certificate or certificates representing
shares of its capital stock. Each certificate so issued shall be signed by or in
the name of the corporation by the Chairman or Vice Chairman of the Board or the
President or a Vice President and by the Chief Financial Officer, Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the
corporation and shall state the name of the record owner thereof and represent
the number of shares registered in certificate form. Any or all of the
signatures on the certificate may be a facsimile. In case any officer, transfer
agent or registrar who has signed or whose facsimile signature has been placed
upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the corporation
with the same effect as if such person were an officer, transfer agent or
registrar at the date of issue.
B. Form of Certificates
There shall be set forth on the face or back of a certificate which the
corporation shall issue to represent a class or series of stock one of the
following:
1. A statement of the powers, designations, preferences and relative
participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights; or
2. A summary of the statement described in Subsection 2.01(B)(1)
above.
If a security of the corporation is subject to a restriction on the transfer or
registration thereof, such restriction shall be noted, in writing, conspicuously
upon the certificate representing the security.
C. Fractional Share Interests
The corporation may, but shall not be required to, issue certificates
representing a fraction of share and, in this event, the holder thereof shall
have the rights appurtenant to ownership of that interest in the corporation. If
the corporation elects not to issue certificates representing a fraction of a
share to the persons entitled thereto, it shall, at its election, either:
1. Arrange for disposition of the fractional interest by those
entitled thereto.
2. Pay in cash the fair value of fractions of a share as of the time
when those entitled to receive such fractions are determined.
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3. Issue scrip or warrants in registered or bearer form which
entitles the holder to receive a full share upon surrender of
such scrip or warrants aggregating one or more full shares, which
scrip or warrants may, if the Board elects, either become (i)
void if not so surrendered on or before a specified date, or (ii)
subject to such other conditions or limitations as may be
designated by the Board.
Section 2.02 Transfer of Certificates
Where a certificate for shares is presented to the corporation or its
transfer clerk or transfer agent with a request to register a transfer of
shares, the corporation is under a duty to register the transfer, cancel the
certificate presented, and issue a new certificate if:
A. The certificate is endorsed or the instructions originated by the
appropriate person or persons;
B. Reasonable assurance is given that those endorsements or instructions
are genuine and effective;
C. The corporation has no duty to inquire into adverse claims or has
discharged any such duty;
D. Any applicable law relating to the collection of taxes has been
complied with; and
E. The transfer is in fact rightful or is to a bona fide purchaser.
Section 2.03 Lost Certificates
Where a certificate is alleged to have been lost, destroyed or stolen, the
corporation shall issue a new certificate in place of the original if the owner:
A. So requests, in writing, before the corporation has notice that the
certificate has been acquired by a bona fide purchaser; and
B. If so requested by the Board, gives the corporation a bond sufficient
to indemnify it against any claim that may be made against it on
account of the alleged loss, destruction or theft of such certificate
or the issuance of such new certificate.
Except as provided above, no new certificate for shares shall be issued in lieu
of an old certificate unless the corporation is ordered to do so by a court in a
judgment in an action brought in a court of appropriate jurisdiction.
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Section 2.04 Meetings of Stockholders
A. Place of Meetings
Meetings of Stockholders shall be held at any place within or without the
State of Delaware designated by the Board. In the absence of any such
designation, Stockholders' meetings shall be held at the principal executive
office of the corporation.
B. Annual Meetings
An annual meeting of the Stockholders of the corporation shall be held for
the election of directors on the date and at the time fixed, from time to time,
by the Board. Subject to the other terms and provisions of these Bylaws, any
other proper subject for Stockholder consideration may be transacted which may
be presented at the meeting.
C. Special Meetings
Special meetings of the Stockholders may be called by the Board, the
Chairman of the Board, the President, or by the holders of shares entitled to
cast not less than thirty-three percent (33%) of the votes at the meeting. Upon
request in writing to the Chairman of the Board, the President, any Vice
President or the Secretary by any person (other than the Board) entitled to call
a special meeting of Stockholders, the officer forthwith shall cause notice to
be given to the Stockholders entitled to vote that a meeting will be held at a
time and for the purposes requested by the person or persons calling the meeting
not less than thirty-five (35) nor more than sixty (60) days after the receipt
of the request. If the notice is not given within twenty (20) days after receipt
of the request, the persons entitled to call the meeting may give the notice.
Only such business shall be conducted at a special meeting of stockholders as
shall have been brought before the meeting pursuant to the notice.
D. Notice of Meetings
1. Except to the extent otherwise provided by applicable law or
unless lapse of time shall be waived, written notice of any
Stockholders' meeting shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each
Stockholder entitled to vote thereat. Each notice shall state the
place, date and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called.
The notice of any meeting may be accompanied by any additional
documents, statements or information which may be selected by the
persons calling the meeting or which may be prescribed by any
applicable law or regulation.
2. If mailed, notice is given when deposited in the United States
mail, postage prepaid, a 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 has been given
shall, in the absence of fraud, be prima facie evidence of the
facts stated therein.
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E. Adjourned Meetings and Notice Thereof
Any meeting of Stockholders may be adjourned from time to time by a vote of
a majority of the shares represented either in person or by proxy whether or not
a quorum is present. When a Stockholders' 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. At
the adjourned meeting the corporation may transact any business which might have
been transacted at the original meeting. However, 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.
F. Waiver of Notice
The transactions of any meeting of Stockholders, however called and
noticed, and wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by
proxy, and if, either before or after the meeting, each of the persons entitled
to vote, not present in person or by proxy, signs a written waiver of notice or
a consent to the holding of the meeting or an approval of the minutes thereof.
No Stockholder may object to any failure to comply with the provisions of this
Section if either (i) at any time before or after the meeting he or she
exercises a written waiver of notice or (ii) he or she attends one meeting in
person or by proxy, except if he or she attends solely 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. Any waiver of notice or
consent need not specify either the business to be transacted or the purpose of
any annual or special meeting of Stockholders. All such waivers, consents and
approvals shall be filed with the corporate records or made a part of the
minutes of the meeting.
G. Quorum/Majority Vote
Except as otherwise provided by the laws of the State of Delaware, a
majority of shares entitled to vote, present in person, or represented by proxy,
shall constitute a quorum for the transaction of business. If a quorum is
present, the affirmative vote of the majority of the voting shares represented
at the meeting and entitled to vote on any matter shall be the act of the
Stockholders, unless the vote of a greater number, or voting by classes, is
required by law, under the Certificate of Incorporation of the corporation or
these Bylaws. The Stockholders present at a duly called or held meeting at which
a quorum is present may continue to transact business until adjournment
notwithstanding the withdrawal of enough Stockholders to leave less than a
quorum, provided that any action taken (other than adjournment) must be approved
by at least a majority of the shares required to constitute a quorum.
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H. Conduct of Meetings
Meetings of Stockholders shall be presided over by one of the following
officers in the following order by seniority, if present and acting: Chairman of
the Board, Vice Chairman of the Board, if any, Chief Executive Officer, the
President or any Vice President selected in the order of chronological age. The
Secretary of the corporation or, in his or her absence, any Assistant Secretary
shall act as Secretary of the meeting. In lieu of the foregoing persons, the
Board may designate a Chairman and/or Secretary at any meeting of the
Stockholders. All meetings shall be conducted by reference to Roberts Rules of
Order or other parliamentary system selected by the chairman of the meeting and
not inconsistent with these Bylaws, the Certificate of Incorporation or any
applicable law.
I. Nominations for Directors; Business to be Brought Before Meeting
1. Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the Stockholders may
be made at an annual meeting of Stockholders (a) pursuant to the
corporation's notice of meeting, (b) by or at the direction of
the Board of Directors or (c) by any Stockholder of the
corporation who was a Stockholder of record at the time of giving
of notice provided for in this Section I, who is entitled to vote
at the meeting and who complies with the notice procedures set
forth in this Section I.
2. For nominations or other business to be properly brought before
an annual meeting by a Stockholder pursuant to clause (c) of
paragraph 1 of this Section I, the Stockholder must have given
timely notice thereof in writing to the Secretary of the
corporation and such other business must otherwise be a proper
matter for Stockholder action. To be timely, a Stockholder's
notice shall be delivered to the Secretary at the principal
executive offices of the corporation not later than the close of
business on the one hundred twentieth (120th) day nor earlier
than the close of business on the one hundred fiftieth (150th)
day prior to the first anniversary of the date of the proxy
statement delivered to Stockholders in connection with the
preceding year's annual meeting; provided, however, that if
either (i) the date of the annual meeting is more than thirty
(30) days before or more than sixty (60) days after such an
anniversary date or (ii) no proxy statement was delivered to
Stockholders in connection with the preceding year's annual
meeting, notice by the Stockholder to be timely must be so
delivered not earlier than the close of business on the ninetieth
(90th) day prior to such annual meeting and not later than the
close of business on the later of the sixtieth (60th) day prior
to such annual meeting or the close of business on the tenth
(10th) day following the day on which public announcement of the
date of such meeting is first made by the corporation. Such
Stockholder's notice shall set forth (a) as to each person whom
the Stockholder proposes to nominate for election or reelection
as a director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election
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of directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business
that the Stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such
Stockholder and the beneficial owner, if any, on whose behalf the
proposal is made; and (c) as to the Stockholder giving the notice
and the beneficial owner, if any, on whose behalf the nomination
or proposal is made (i) the name and address of such Stockholder,
as they appear on the corporation's books, and of such beneficial
owner and (ii) the class and number of shares of capital stock of
the corporation that are owned beneficially and held of record by
such Stockholder and such beneficial owner.
3. Notwithstanding anything in the second sentence of paragraph 2 of
this Section I to the contrary, in the event that the number of
directors to be elected to the Board of Directors of the
corporation is increased and there is no public announcement by
the corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least
seventy (70) days prior to the first anniversary of the preceding
year's annual meeting (or, if the annual meeting is held more
than thirty (30) days before or sixty (60) days after such
anniversary date, at least seventy (70) days prior to such annual
meeting), a Stockholder's notice required by this Section I shall
also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive office of
the corporation not later than the close of business on the tenth
(10th) day following the day on which such public announcement is
first made by the corporation.
4. For purposes of this Section I, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News
Service, Associated Press or comparable national news service or
in a document publicly filed by the corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 and
15(d) of the Exchange Act.
5. Notwithstanding the foregoing provisions of this Section I, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in this Section I. Nothing in
this Section I shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the
corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) of the holders of any series of Preferred
Stock to elect directors under specified circumstances.
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Section 2.05 Voting of Shares
A. In General
Except as may otherwise be prescribed by the provisions of the Certificate
of Incorporation, each share of stock shall entitle the holder thereof to one
vote. In the election of directors, a plurality of the votes cast shall elect.
Any other action shall be authorized by a majority of the votes cast except
where the applicable law in the State of Delaware prescribes a different
percentage of votes and/or a different exercise of voting power, and except as
may be otherwise prescribed by the provisions of the Certificate of
Incorporation or these Bylaws.
B. Secret Voting by Ballot
Elections for directors and voting in other matters need not be by secret
ballot unless any Stockholder demands voting by secret ballot on the applicable
issues at the meeting and before the voting begins.
C. Voting of Shares by Certain Holders
Shares of capital stock of the corporation standing in the name of another
corporation, domestic or foreign, and entitled to vote may be voted by such
officer, agent or proxy as the bylaws of such other corporation may prescribe
or, in the absence of such provision, as the board of directors of such other
corporation may determine.
Shares of capital stock of the corporation standing in the name of a
deceased person, a minor, an incompetent or a corporation declared bankrupt and
entitled to vote may be voted by an administrator, executor, guardian,
conservator or trustee, as the case may be, either in person or by proxy,
without transfer of such other corporation into the name of the official so
voting.
A Stockholder whose shares of capital stock of the corporation are pledged
shall be entitled to vote such shares unless on the transfer books of the
corporation the pledgor has expressly empowered the pledgee to vote such shares,
in which case only the pledgee, or such pledgee's proxy, may represent such
shares and vote thereon.
Shares of capital stock of the corporation 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 shall be held by the
corporation, shall not be voted at any meeting of Stockholders and shall not be
counted in determining the total number of outstanding shares for the purpose of
determining whether a quorum is present. Nothing in this Section 2.05C shall be
construed to limit the right of the corporation to vote shares of capital stock
of the corporation held by it in a fiduciary capacity.
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D. Action Without a Meeting
Except as provided in Sections 3.04 and 3.05 hereof, the Stockholders of
the corporation may not take any action by written consent in lieu of a meeting.
Section 2.06 Proxies
Every person entitled to vote for directors or any other matter shall have
the right to do so either in person or by one or more agents authorized by a
written proxy signed by the person and filed with the Secretary of the
corporation. A proxy shall be deemed signed if the Stockholder's name is placed
on the proxy (whether by manual signature, typewriting, telegraphic
transmission, or otherwise) by the Stockholder or Stockholder's attorney in
fact. A validly executed proxy which does not state that it is irrevocable shall
continue in full force and effect unless (i) revoked by the person executing it,
before the vote pursuant to that proxy, by a writing signed by the person and
delivered to the corporation stating that the proxy is revoked, or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by the person executing the proxy; or (ii) written notice of the death or
incapacity of the maker of that proxy is received by the corporation before the
vote pursuant to that proxy is counted; provided, however, that no proxy shall
be valid after the expiration of eleven (11) months from the date of the proxy,
unless otherwise provided in the proxy. The revocability of a proxy that states
on its face that it is irrevocable shall be governed by the provisions of the
law applicable in the State of Delaware.
Section 2.07 Inspectors of Election
A. Appointment
The Board shall, in advance of any meeting of Stockholders, appoint one or
more inspectors (individually an "Inspector" and collectively, the "Inspectors")
to act at such meeting and make a written response thereof. The Board may
designate one or more persons as alternate Inspectors to replace any Inspector
who shall fail to act. If no Inspector or alternate shall be able to act at such
meeting, the person presiding at such meeting shall appoint one or more other
persons to act as Inspectors thereat. Each Inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of an Inspector with strict impartiality and according to the
best or his or her ability.
B. Duties
The Inspectors shall (i) ascertain the number of shares of capital stock of
the corporation outstanding and the voting power of each, (ii) determine the
shares of capital stock of the corporation represented at such meeting and the
validity of proxies and ballots, (iii) count all votes and ballots, (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the Inspectors and (v) certify their
determination of the number of such shares represented at such meeting and their
count of all votes and ballots. The Inspectors may appoint or retain other
persons or entities to assist them in the performance of their duties.
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The date and time of the opening and closing of the polls for each matter
upon which the Stockholders will vote at such meeting shall be announced at such
meeting. No ballots, proxies or votes, nor duly revocations thereof or changes
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 any
Stockholder shall determine otherwise.
In determining the validity and counting of proxies and ballots, the
Inspectors shall be limited to an examination of the proxies, ballots and the
regular books and records of the corporation, except that the Inspectors may
consider other reliable information for the limited purpose of, reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by a Stockholder of record to cast or more votes than such
Stockholder holds of record. If the Inspectors consider other reliable
information for the limited purpose permitted herein, the Inspectors, at any
time they make their certification pursuant to this Section 2.07(B), shall
specify the precise information considered by them, including the person or
persons from whom they obtained such information, when the information was
obtained, the means by which such information was obtained and the basis for the
Inspectors' belief that such information is accurate and reliable.
Section 2.08 Record Date
In order that the corporation may determine the Stockholders entitled to
notice of or to vote at any meeting or entitled to express consent to any
corporate action 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 other lawful action, the Board may fix, in
advance, a record date, which shall not be more than sixty (60) nor less than
ten (10) days prior to the date of such meeting nor more than sixty (60) days
prior to any such action. If no record date is fixed:
A. 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 business day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the business day
next preceding the day on which the meeting is held.
B. The record date for determining Stockholders entitled to give consent
to corporate action in writing without a meeting, when no prior action
by the Board has been taken, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken
is delivered (by hand or by certified or registered mail, return
receipt requested) to the corporation's registered agent in the State
of Delaware, its principal place of business, or to the Secretary.
C. The record date for determining Stockholders for any other purpose
shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
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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
unless the Board fixes a new record date for the adjourned meeting, but the
Board shall fix a new record date if the meeting is adjourned for more than
thirty (30) days from the date set for the original meeting. The stock ledger
shall be the only evidence as to who are the Stockholders entitled to examine
the stock ledger, the stock list or the books of the corporation, or to vote in
person or by proxy at any meeting of Stockholders.
ARTICLE III
Directors
Section 3.01 Powers
Subject to the provisions of the laws of the State of Delaware and the
Certificate of Incorporation, the business and affairs of the corporation shall
be managed and all corporate powers shall be exercised by or under the direction
of the Board. The Board may delegate the management of the day-to-day operations
of the business of the corporation to a management company or other person
provided that the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised under the ultimate direction of the
Board.
Section 3.02 Committees of the Board
A. The Board shall, by resolution adopted by a majority of the whole
Board, designate an Executive Committee consisting of three (3)
directors, to serve at the pleasure of the Board. The Chairman of the
Board, or Co-Chairmen of the Board, shall be members of the Executive
Committee. The resolution adopted by the Board shall provide that
during intervals between meetings of the Board, the Executive
Committee shall have and may exercise all the powers and authority of
the Board in the management of the business and affairs of the
corporation in all cases; provided, however, that the Executive
Committee shall not have the power or authority to (i) take any of the
actions set forth in subsection B, nos. 1-6, below, (ii) contravene
any specific actions or directions of the Board, or (iii) act on any
matter upon which committees may not act as otherwise provided in the
Delaware General Corporation Law. A majority of the authorized number
of directors on the Executive Committee shall constitute a quorum for
the transaction of such committee's business.
B. The Board may, by resolution adopted by a majority of the whole Board
designate one (1) or more committees, each consisting of one (1) or
more directors, to serve at the pleasure of the Board. Any such
committee, to the extent provided in the resolution of the Board and
subject to the provisions of the applicable law in the state of
Delaware, shall have and may exercise all the powers and authority of
the Board in the management of the business and affairs of the
corporation, and may authorize the corporate seal to be affixed to all
papers which may require it, but no such committee shall have the
power or authority with respect to:
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1. Amending the Certificate of Incorporation (except that a
Committee may, to the extent provided in the resolution or
resolutions providing for the issuance of shares of stock adopted
by the Board is provided in Section 151(a) of the Delaware
General Corporation Law, fix the designations and any of the
preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the
corporation or the conversion into, or the exchange of shares
for, shares of any other class or classes of stock of the
corporation or fix the number of shares of any series of stock or
authorize the increase or decrease of the shares of any series).
2. Adopting an agreement of merger or consolidation under Sections
251 or 252 of the Delaware General Corporation Law.
3. Recommending to the Stockholders the sale, lease or exchange of
all or substantially all of the corporation's property and
assets.
4. Recommending to the Stockholders a dissolution of the Corporation
or a revocation of a dissolution.
5. Amending the Bylaws of the Corporation.
6. Unless the resolutions, Bylaws, or Certificate of Incorporation
expressly so provide, declaring a dividend, authorizing the
issuance of stock or adopting a certificate of ownership and
merger pursuant to Section 253 of the Delaware General
Corporation Law.
C. In the absence or disqualification of a member of a committee, the
member or members thereof present at any meeting may not appoint
another member of the Board to act at the meeting in place of any such
absent or disqualified member.
Section 3.03 Election and Term of Office
The directors shall be elected at each annual meeting of Stockholders, but,
if any such annual meeting is not held or the directors are not elected thereat,
the directors may be elected at any special meeting of Stockholders held for
that purpose. All directors shall hold office until the expiration of the term
for which elected and until their respective successors are elected and
qualified.
Section 3.04 Vacancies
A vacancy or vacancies in the Board shall be deemed to exist in case of
death, resignation or removal of any director, or if the authorized number of
directors be increased, or if the Stockholders fail, at any annual or special
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meeting of Stockholders, at which any director or directors are elected, to
elect to fill the full authorized number of directorships. Except for a vacancy
created by the removal of a director, vacancies on the Board may be filled by a
majority of the directors then in office, whether or not less than a quorum, or
by a sole remaining director, and each director so elected shall hold office
until his successor is elected. A vacancy on the Board created by the removal of
a director may only be filled by the vote of a majority of the shares entitled
to vote represented at a duly held meeting at which a quorum is present, or,
notwithstanding anything to the contrary contained in these Bylaws, by the
written consent of a majority of the outstanding shares entitled to vote
(obtained in accordance with the second paragraph of Section 3.05 hereof). The
Stockholders may elect a director or directors at any time to fill any vacancy
or vacancies not filled by the directors. Insofar as a director or directors are
elected by a class or series of stock, vacancies or newly created directorships
are to be filled only by the remaining director or directors elected by such
class or series or by the vote of a majority of the shares of such class or
series.
Section 3.05 Removal
Subject to the rights of any shares having a preference over the Common
Stock of the corporation as to dividends or upon liquidation to elect directors
under specified circumstances, any director may be removed from office, with or
without cause, but only by the affirmative vote of the holders of a majority of
the combined voting power of all then outstanding shares entitled to vote
generally in the election of directors, voting together as a single class.
Notwithstanding anything to the contrary contained in these Bylaws, such
action may be taken at any annual or special meeting of Stockholders or such
action 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 shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which all shares entitled to vote thereon were present and vote and shall be
delivered to the corporation by delivery (by hand or by certified and registered
mail, return receipt requested) to its registered office in the State of
Delaware, its principal place of business or to the Secretary of the
corporation. Where the approval of Stockholders is given without a meeting by
less than unanimous written consent, unless the consents of all Stockholders
entitled to vote have been solicited in writing, the Secretary shall give prompt
notice of the corporate action approved by the Stockholders without a meeting.
Such notice shall be given in the same manner as notice of Stockholders'
meetings.
Section 3.06 Resignation
Any director may resign effective upon giving written notice to the
Chairman of the Board, the Chief Executive Officer, the President, the Secretary
or the Board of the corporation, unless the notice specifies a later time for
the effectiveness of such resignation. If the resignation is effective at a
future time the Board or the Stockholders shall have the power to elect a
successor to take office when the resignation is to become effective.
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Section 3.07 Meetings of the Board
A. Regular Meetings
Regular meetings of the Board shall be held at such time and place within
or without the State of Delaware as may be determined from time to time by
resolution of the Board or by written consent of all members of the Board or in
these Bylaws. Regular meetings shall be held upon oral or written notice given
by any means in sufficient time for the convenient assembly of directors;
forty-eight (48) hours' notice delivered by mail or twelve (12) hours' notice
delivered personally or by telephone, telegraph or telecopier or other similar
means shall be deemed sufficient for the foregoing purpose. Any notice shall
state the date, place and hour of the meeting. Notice of a meeting need not be
given to any director who signs a waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such director.
B. Organization Meetings
Immediately following each annual meeting of Stockholders, the Board shall
hold a regular meeting for the purpose of organization, election of officers and
the transaction of other business. Notice of such meetings is hereby dispensed
with.
C. Special Meetings
Special meetings of the Board for any purpose or purposes shall be called
at any time or place by the Chairman of the Board or the Chief Executive Officer
or the President or by any Vice President or the Secretary or any two directors.
Special meetings shall be held upon oral or written notice given by any means in
sufficient time for the convenient assembly of directors; seventy-two (72)
hour's notice delivered by mail or twenty-four (24) hour's notice delivered
personally or by telephone or telegraph or other similar means shall be deemed
sufficient for the foregoing purpose. Any notice shall state the date, place and
hour of the meeting. Notice of a meeting need not be given to any director who
signs a waiver of notice, whether before or after the meeting, or who attends
the meeting without protesting, prior thereto or at its commencement, the lack
of notice to such director.
D. Notice of Adjournment
A majority of the directors present, whether or not a quorum is present,
may adjourn any meeting to another time and place. If the meeting is adjourned
for more than twenty-four (24) hours, notice of such adjournment to another time
and place shall be given prior to the time of the adjourned meeting to the
directors who were not present at the time of adjournment, in the same manner
set forth above for special meetings in Section 3.07.C.
E. Place of Meeting
Meetings of the Board may be held at any place within or without the State
of Delaware which has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, then such meeting shall be held at
the principal executive office of the corporation, or such other place
designated by resolution of the Board.
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F. Presence by Conference Telephone Call
Members of the Board or any committee designated by the Board may
participate in a meeting through use of conference telephone or similar
communications equipment, so long as all members participating in such meeting
can hear each other. Such participation constitutes presence in person at such
meeting.
G. Quorum/Voting
Five (with the composition of such five subject to the terms of any
stockholder voting agreement to which the Company is a party) of the seven
authorized directors constitutes a quorum of the Board for the transaction of
business; provided, however, that in the absence of a quorum, a majority of the
directors present at any directors' meeting, either regular or special, may
adjourn any meeting to another time and place. If the meeting is adjourned for
more than twenty-four (24) hours, notice of any adjournment to another time or
place shall be given prior to the time of the adjourned meeting to the directors
who were not present at the time of adjournment, in the same manner as set forth
above for special meetings in Section 3.07.C. Every act or decision done or made
by a majority of the directors present at a meeting duly held at which a quorum
is present is the act of the Board, unless a greater number be required by law,
by the Certificate of Incorporation or by the provisions of these Bylaws;
provided, however, that these Bylaws hereby authorize the Board of Directors to
adopt operating resolutions requiring a greater than majority vote with respect
to certain actions. A meeting at which a quorum is initially present may
continue to transact business notwithstanding the withdrawal of directors, if
any action taken is approved by at least a majority of the required quorum for
such meeting.
H. Waiver of Notice
Whenever notice is required to be given to any director pursuant to
Delaware law, the corporation's Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed by such director, whether before or after the
time stated therein, 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 and sole purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. All such waivers,
consents and approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Section 3.08 Action Without Meeting
Any action required or permitted to be taken at any meeting of the Board or
any committee thereof may be taken without a meeting if all members of the Board
or any committee, as the case may be, consent in writing to such action and the
writing or writings are filed with the minutes or proceedings of the Board or
committee, as the case may be.
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Section 3.09 Fees and Compensation
Directors and members of the committees may receive such compensation, if
any, for their services, and such reimbursement of expenses, as may be fixed or
determined by resolution of the Board.
Section 3.10 Interested Directors
The presence of a director, who is directly or indirectly a party in a
contract or transaction with the corporation, or between the corporation and any
other corporation, partnership, association or other organization in which such
director is a director or officer or has a financial interest, may be counted in
determining whether a quorum is present at any meeting of the Board of Directors
or a committee thereof at which such contract or transaction is discussed or
authorized, and such director may participate in such meeting to the extent
permitted by applicable law, including Section 144 of the Delaware General
Corporation Law.
ARTICLE IV
Officers
Section 4.01 Officers
The officers of the corporation shall consist of a Chairman (or
Co-Chairmen) of the Board or a Chief Executive Officer (or Co-Chief Executive
Officers), or both, a President, a Secretary, a Chief Financial Officer, and
such additional officers as may be elected or appointed in accordance with
Section 4.03 of these Bylaws and as may be necessary to enable the corporation
to sign instruments and share certificates. Any number of offices may be held by
the same person.
Section 4.02 Elections
All officers of the corporation, except such officers as may be otherwise
appointed in accordance with Section 4.03, shall be chosen by the Board, and
each shall hold his or her office until he or she shall resign or be removed or
is otherwise disqualified to serve, or until his or her successor is chosen and
qualified.
Section 4.03 Other Officers
The Board, at their discretion, may appoint, or empower the Chief Executive
Officer to appoint a Chief Operating Officer, one or more Vice Presidents, one
or more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, or
such other officers as the business of the corporation may require, each of whom
shall hold office for such period, have such authority and perform such duties
as the Board or the Chief Executive Officer may from time to time determine.
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Section 4.04 Removal
Any officer may be removed, either with or without cause, by the Board, at
any regular or special meeting thereof or by any officer upon whom such power of
removal may be conferred by the Board (subject, in each case, to the rights, if
any, of an officer under contract of employment).
Section 4.05 Resignation
Any officer may resign at any time by giving written notice to the Board or
to the Chief Executive Officer, or to the Secretary of the corporation without
prejudice to the rights, if any, of the corporation under any contract to which
the officer is a party. Any such resignation shall take effect at the time of
the receipt of such notice or at any later time specified thereon and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 4.06 Vacancies
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed in
these Bylaws for regular appointments to such office.
Section 4.07 Chairman of the Board
The Board may choose a Chairman (or Co-Chairmen) of the Board from among
its members. The Chairman of the Board, if there shall be such an officer,
shall, if present, preside at all meetings of the Board and at all meetings of
the Stockholders and exercise and perform such other powers and duties as may be
from time to time assigned to him or her by the Board. If there is no Chief
Executive Officer or President, the Chairman of the Board shall in addition be
the Chief Executive Officer of the corporation and shall have the powers and
duties prescribed in Section 4.08 below. The Chairman of the Board shall hold
office until the organization meeting of the Board next succeeding his or her
election and until his or her successor is elected and qualified or until his or
her earlier resignation or removal.
Section 4.08 Chief Executive Officer
Subject to such supervisory powers, if any, as may be given by the Board to
the Chairman of the Board, if there be such an officer, the Chief Executive
Officer (or Co-Chief Executive Officers) shall be the general manager and Chief
Executive Officer of the corporation and shall, subject to the control of the
Board, have general supervision, direction and control of the business and
affairs of the corporation. In the absence of the Chairman of the Board, or if
there be none, he or she shall preside at all meetings of the Board. He or she
shall be ex-officio a member of all the standing committees, including the
Executive Committee, if any, and shall have the general powers and duties of
management usually vested in the office of Chief Executive Officer of a
corporation, and shall have such other powers and duties as may be prescribed by
the Board or these Bylaws.
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Section 4.09 President
In the absence or disability of the Chief Executive Officer (or both
Co-Chief Executive Officers if there are Co-Chief Executive Officers), the
President shall perform all the duties of the Chief Executive Officer and when
so acting shall have all the powers of, and be subject to the restrictions upon,
the Chief Executive Officer. The President (or Co-Presidents) shall have such
other powers and duties as may be prescribed by the Board or these Bylaws.
Section 4.10 Secretary
The Secretary shall keep, or cause to be kept, at the principal executive
office or such other place as the Board may order, a book of minutes of all
meetings of Stockholders, the Board and committees of the Board, with the time
and place of holding, whether regular or special, and if special, how
authorized, the notice thereof given, the names of those present at the
directors' or committee meetings, the number of shares present or represented at
Stockholders' meetings, and the proceedings thereof.
The Secretary shall keep or cause to be kept, at the principal executive
office or at the office of the corporation's transfer agent or registrar, a
record of its Stockholders giving the names and addresses of all Stockholders
and the number and class of shares held by each, the number and date of
certificates issued for shares, and the number and date of cancellation of every
certificate surrendered for cancellation. This information may be kept in
written form or in any other form capable of being converted into written form.
The Secretary shall give, or cause to be given, notice of all meetings of
the Stockholders and of the Board required by the Bylaws or by law to be given,
and shall have such other powers and perform such other duties as may be
prescribed by the Board or by the Bylaws.
Section 4.11 Chief Financial Officer
The Chief Financial Officer shall have general supervision, direction and
control of the financial affairs of the corporation and shall have such other
powers and duties as may be prescribed by the Board or these Bylaws. In the
absence of a named Treasurer, the Chief Financial Officer shall also have the
powers and duties of the Treasurer as hereinafter set forth and shall be
authorized and empowered to sign as Treasurer in any case where such officer's
signature is required.
Section 4.12 Treasurer
The Treasurer shall keep or cause to be kept the books and records of
account as provided for and in accordance with Section 6.01 of these Bylaws. The
books of account shall at all reasonable times be open to inspection by any
director. The Treasurer shall deposit all moneys and other valuables in the name
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and to the credit of the corporation with such depositaries as may be designated
by the Board. He or she shall disburse the funds of the corporation as may be
ordered by the Board, shall render to the Chief Executive Officer and directors,
whenever they request it, an account of all of his transactions as Treasurer and
of the financial condition of the corporation, and shall have such other powers
and perform such other duties as may be prescribed by the Board or these Bylaws.
Section 4.13 Vice President
In the absence or disability of the President (or both Co-Presidents if
there are Co-Presidents), the Vice Presidents, in order of their rank as fixed
by the Board, or, if not ranked, the Vice President designated by the Board,
shall perform all the duties of the President and when so acting shall have all
the powers of, and be subject to the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them.
Section 4.14. Chief Operating Officer
The Chief Operating Officer shall have such authority and perform such
duties as the Board may from time to time determine.
Section 4.15. Co-Officers
If any office is held by two persons as co-officers, each such person shall
independently have the full power and authority vested in such office, unless
otherwise prescribed.
ARTICLE V
Indemnification and Insurance
The corporation shall, to the fullest extend permitted by Section 145 of
the General Corporation Law of the State of Delaware, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have the power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any bylaw, agreement,
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, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person. Expenses incurred by any
such person in connection with a proceeding shall be paid by the corporation in
advance of the final disposition of such proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amounts, upon such
terms and conditions as the Board of Directors deems appropriate, if it shall
ultimately be determined that such person is not entitled to be indemnified by
the corporation.
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ARTICLE VI
Miscellaneous
Section 6.01 Books of Account and Proceedings
The corporation shall keep adequate and correct books and records of
account and shall keep minutes of the proceedings of its Stockholders, Board and
committees of the Board and shall keep at its principal executive office, or at
the office of its transfer agent or registrar, a record of its Stockholders,
giving the names and addresses of all Stockholders and the number and class of
shares held by each. Such minutes shall be kept in written form. Such other
books and records shall be kept either in written form or in any other form
capable of being converted into written form.
Section 6.02 Rights of Inspection
A. By Stockholders
1. Record of Stockholders
The Secretary shall prepare and make, at least ten (10) days before every
meeting of Stockholders, a complete list of 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 such 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, at such place 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. Further, any Stockholder, in person or by attorney or other agent, upon
written demand under oath stating the purposes thereof, has the right, during
usual business hours, to inspect for any proper purpose the corporation's list
of Stockholders. Such Stockholder has the right to make copies or extracts
therefrom. A proper purpose for this Section 6.02 shall mean a purpose
reasonably related to such person's interest as a Stockholder. In every instance
where an attorney or other agent shall be the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing which authorizes the attorney or other agent to so act on
behalf of the Stockholder. The demand under oath shall be directed to the
corporation at its principal place of business. The corporation shall either
permit the right to inspection or reply to the written demand within five (5)
business days of receiving the demand.
2. Corporate Records
Any Stockholder, in person or by attorney or other agent, shall upon
written demand under oath stating the purpose thereof, have the right during
business hours to inspect for any proper purpose the accounting books and
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records and minutes of proceedings of the Stockholders and the Board and
committees of the Board. This right of inspection shall also extend to the
records of any subsidiary of the corporation.
B. By Directors
Every director shall have the right at any reasonable time to examine the
corporation's stock ledger, a list of its Stockholders and its other books and
records for a purpose reasonably related to his or her position as a director
Such inspection by a director may be made in person or by agent or attorney and
the right of inspection includes the right to copy and make extracts.
Section 6.03 Checks, Drafts, Etc.
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness, issued in the name of or payable to the corporation,
shall be signed or endorsed by such person or persons and in such manner as,
from time to time, shall be determined by resolution of the Board.
Section 6.04 Authority to Execute Contracts
The Board may authorize any officer or officers, agent or agents, to enter
into any contract or execute any instrument in the name of and on behalf of the
corporation, and subject to the applicable laws of the State of Delaware. Such
authority may be general or confined to specific instances and, unless so
authorized by the Board, no officer, agent or employee shall have the power or
authority to bind the corporation by any contract or engagement or to pledge its
credit or to render it liable for any purpose or to any amount.
Section 6.05 Representation of Shares of Other Corporations
The Chairman of the Board, if any, the Chief Executive Officer, President
or any Vice President and the Secretary or any Assistant Secretary of this
corporation are authorized to vote, represent and exercise on behalf of this
corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the corporation. The authority herein
granted to said officers to vote or represent on behalf of this corporation any
and all shares held by this corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
Section 6.06 Construction and Definitions
Unless the context otherwise requires, the general provisions, rules of
construction and definition contained in the corporation laws of the State of
Delaware shall govern the construction of these Bylaws. Without limiting the
generality of the foregoing, the singular number includes the plural and the
plural number includes the singular, and the term "person" includes a
corporation as well as a natural person.
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ARTICLE VII
Amendments
Section 7.01 Power of Stockholders
New Bylaws may be adopted or these Bylaws may be amended or repealed by the
vote of Stockholder entitled to exercise a majority of the voting power of the
corporation or by the written consent of such Stockholders, except as otherwise
provided by law or by the Certificate of Incorporation.
Section 7.02 Power of Directors
Subject to the right of Stockholders as provided in Section 7.01 to adopt,
amend or repeal Bylaws, any Bylaw, including this Section 7.02, may be adopted,
amended or repealed by the affirmative vote of at least a majority of the
authorized members of the Board of Directors at any regular or special meeting
of the Board or by the unanimous written consent of the Board.
ARTICLE VIII
Emergency Provisions
Section 8.01 General
The provisions of this Article shall be operative only during any emergency
resulting from an attack on the United States or on a locality in which the
corporation conducts its business or customarily holds meetings of the Board or
Stockholders, or during any nuclear or atomic disaster, or during the existence
of any catastrophe or other similar emergency condition, as a result of which a
quorum of the Board or a standing committee thereof cannot be convened. Said
provisions in such event shall override all other Bylaws of the corporation in
conflict with any provisions of this Article, and shall remain operative so long
as it remains impossible or impracticable to continue the business of the
corporation otherwise, but thereafter shall be inoperative; provided that all
actions taken in good faith pursuant to such provisions shall thereafter remain
in full force and effect unless and until revoked by action taken pursuant to
the provisions of the Bylaws other than those contained in this Article. No
officer, director or employee acting in accordance with any provision of this
Article shall be liable except for willful misconduct.
Section 8.02 Unavailable Directors
All directors of the corporation who are not available to perform their
duties as directors by reason of physical or mental incapacity or for any other
reason or who are unwilling to perform their duties or whose whereabouts are
unknown shall automatically cease to be directors, with like effect as if such
persons had resigned as directors, so long as such unavailability continues.
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Section 8.03 Authorized Number of Directors
The authorized number of directors shall be the number of directors
remaining after eliminating those who have ceased to be directors pursuant to
Section 8.02, or the minimum number required by law, whichever number is
greater.
Section 8.04 Quorum
The number of directors necessary to constitute a quorum shall be one-third
(1/3) of the authorized number of directors as specified in the foregoing
Section, or such other minimum number as, pursuant to the law or lawful decree
then in force, it is possible for the Bylaws of a corporation to specify.
Section 8.05 Creation of Emergency Committee
In the event the number of directors remaining after eliminating those who
have ceased to be directors pursuant to Section 8.02 is less than the minimum
number of authorized directors required by law, then until the appointment of
additional directors to make up such required minimum, all the powers and
authorities which the Board could by law delegate, including all powers and
authorities which the Board could delegate to a committee, shall be
automatically vested in an emergency committee, and the emergency committee
shall thereafter manage the affairs of the corporation pursuant to such powers
and authorities and shall have all other powers and authorities as may by law or
lawful decree be conferred on any person or body of persons during a period of
emergency.
Section 8.06 Constitution of Emergency Committee
The emergency committee shall consist of all the directors remaining after
eliminating those who have ceased to be directors pursuant to Section 8.02,
provided that such remaining directors are not less than three (3) in number. In
the event such remaining directors are less than three (3) in number, the
emergency committee shall consist of three (3) persons, who shall be the
remaining director or directors and either one (1) or two (2) officers or
employees of the corporation, as the remaining director or directors may in
writing designate. If there is no remaining director, the emergency committee
shall consist of the three (3) most senior officers of the corporation who are
available to serve, and if and to the extent that officers are not available,
the most senior employees of the corporation. Seniority shall be determined in
accordance with any designation of seniority in the minutes of the proceedings
of the Board, and in the absence of such designation, shall be determined by
rate of remuneration. In the event that there are no remaining directors and no
officers or employees of the corporation available, the emergency committee
shall consist of three (3) persons designated in writing by the Stockholder
owning the largest number of shares of record as of the date of the last record
date.
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Section 8.07 Powers of Emergency Committee
The emergency committee, once appointed, shall govern its own procedures
and shall have power to increase the number of members thereof beyond the
original number, and in the event of a vacancy or vacancies therein, arising at
any time, the remaining member or members of the emergency committee shall have
the power to fill such vacancy or vacancies. In the event at any time after its
appointment all members of the emergency committee shall die or resign or become
unavailable to act for any reason whatsoever, a new emergency committee shall be
appointed in accordance with the foregoing provisions of this Article.
Section 8.08 Directors Becoming Available
Any person who has ceased to be a director pursuant to the provisions of
Section 8.02 and who thereafter becomes available to serve as a director shall
automatically become a member of the emergency committee.
Section 8.09 Election of Board
The emergency committee shall, as soon after its appointment as is
practicable, take all requisite action to secure the election of a Board, and
upon such election all the powers and authorities of the emergency committee
shall cease.
Section 8.10 Termination of Emergency Committee
In the event, after the appointment of an emergency committee, a sufficient
number of persons who ceased to be directors pursuant to Section 8.02 become
available to serve as directors, so that if they had not ceased to be directors
as aforesaid, there would be enough directors to constitute the minimum number
of directors required by law, then all such persons shall automatically be
deemed to be reappointed as directors and the powers and authorities of the
emergency committee shall be at an end.
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