EXHIBIT 3.2
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BY-LAWS
OF
GETTY IMAGES, INC.
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TABLE OF CONTENTS
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ARTICLE I
OFFICES
SECTION 1.01. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Annual Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.02. Special Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2.03. Notice of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.04. Waiver of Notice. . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.05. Adjournments. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 2.06. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.07. Voting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.08. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.09. Organization. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2.10. Advance Notice of Business to Be Transacted at Annual
Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
SECTION 2.11. No Action Without Meeting . . . . . . . . . . . . . . . . . . . . . .5
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. General Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.02. Number and Term of Office . . . . . . . . . . . . . . . . . . . . . 5
SECTION 3.03. Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.04. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.05. Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.06. Action by Consent . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.07. Action by Means of Telephone or Similar Communications
Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.08. Compensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(i)
TABLE OF CONTENTS
(Continued)
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ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.01. Committees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
ARTICLE V
OFFICERS
SECTION 5.01. Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.02. Authority and Duties. . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.03. Term of Office, Resignation and Removal . . . . . . . . . . . . . . 9
SECTION 5.04. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.05. The Chairman. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 5.06. The President . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5.07. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5.08. The Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 5.09. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.10. The Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.11. Assistant Treasurers. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.12. Additional Officers . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.13. Removal of Certain Officers . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VI
CHECKS, DRAFTS, NOTES AND PROXIES
SECTION 6.01. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.02. Checks, Drafts and Notes. . . . . . . . . . . . . . . . . . . . . 12
SECTION 6.03. Execution of Proxies. . . . . . . . . . . . . . . . . . . . . . . . 12
(ii)
TABLE OF CONTENTS
(Continued)
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ARTICLE VII
SHARES AND TRANSFERS OF SHARES
SECTION 7.01. Certificates of Stock . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 7.02. Record. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 7.03. Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 7.04. Addresses of Stockholders . . . . . . . . . . . . . . . . . . . . . 13
SECTION 7.05. Lost, Destroyed or Mutilated Certificates . . . . . . . . . . . . . 13
SECTION 7.06. Facsimile Signatures. . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 7.07. Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 7.08. Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 7.09. Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII
BOOKS AND RECORDS
SECTION 8.01. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IX
SEAL
SECTION 9.01. Seal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE X
FISCAL YEAR
SECTION 10.01. Fiscal Year. . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XI
INDEMNIFICATION
SECTION 11.01. Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . 15
(iii)
TABLE OF CONTENTS
(Continued)
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ARTICLE XII
AMENDMENTS
SECTION 12.01. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
(iv)
BY-LAWS
OF
GETTY IMAGES, INC.
ARTICLE I
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of Getty
Images, Inc. (the "Corporation") in the State of Delaware shall be The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx,
Xxxxxx of New Castle, and the registered agent in charge thereof shall be The
Corporation Trust Company.
SECTION 1.02. OTHER OFFICES. The Corporation may also have an
office or offices at any other place or places within or without the State of
Delaware as the Board of Directors of the Corporation (the "BOARD") may from
time to time determine or the business of the Corporation may from time to
time require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. ANNUAL MEETINGS. The annual meeting of stockholders
of the Corporation for the election of directors of the Corporation
("DIRECTORS"), and for the transaction of such other business as may properly
come before such meeting, shall be held at such place, date and time as shall
be fixed by the Board and designated in the notice or waiver of notice of
such annual meeting.
SECTION 2.02. SPECIAL MEETINGS. Special meetings of stockholders
for any purpose or purposes may be called by the Chairman of the Board (the
"CHAIRMAN"), the President of the Corporation (the "PRESIDENT"), the
Secretary of the Corporation (the "SECRETARY") at the request in writing of
at least two-thirds of the entire Board or the recordholders of at least a
majority of the outstanding shares of common stock, par value $0.01 per
share, of the Corporation ("COMMON STOCK"). The special meeting will be held
at such place, date and time as shall be designated in the notice or waiver
of notice thereof. Such notice shall state the purpose or purposes of the
proposed meeting and no business may be transacted at any special meeting of
stockholders other than such business as may be designated in the notice
calling such meeting. Unless otherwise prescribed by statute or by
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the Amended and Restated Certificate of Incorporation of the Corporation (the
"CERTIFICATE OR INCORPORATION"), special meetings may not be called by any
other person or persons.
SECTION 2.03. NOTICE OF MEETINGS. (a) Except as otherwise provided
by law, written notice of each annual or special meeting of stockholders
stating the place, date and time of such meeting and, in the case of a
special meeting, the purpose or purposes for which such meeting is to be held
and by whom the meeting is being called, shall be given personally or by
first-class mail (airmail in the case of international communications) to
each holder of Common Stock entitled to vote thereat, not less than 10 nor
more than 60 days before the date of such meeting. If mailed, such notice
shall be deemed to be given when deposited in the United States mail, postage
prepaid, directed to the stockholder at such stockholder's address as it
appears on the records of the Corporation. If, prior to the time of mailing,
the Secretary shall have received from any stockholder a written request that
notices intended for such stockholder are to be mailed to some address other
than the address that appears on the records of the Corporation, notices
intended for such stockholder shall be mailed to the address designated in
such request.
Notice of a special meeting of stockholders may be given by the
person or persons calling the meeting, or, upon the written request of such
person or persons, such notice shall be given by the Secretary on behalf of
such person or persons. If the person or persons calling a special meeting
of stockholders give notice thereof, such person or persons shall deliver a
copy of such notice to the Secretary. Each request to the Secretary for the
giving of notice of a special meeting of stockholders shall state the purpose
or purposes of such meeting.
SECTION 2.04. WAIVER OF NOTICE. Notice of any annual or special
meeting of stockholders need not be given to any stockholder entitled to vote
at such meeting who files a written waiver of notice with the Secretary, duly
executed by the person entitled to notice, whether before or after such
meeting. Neither the business to be transacted at, nor the purpose of, any
meeting of stockholders need be specified in any written waiver of notice
thereof. Attendance of a stockholder at a meeting, in person or by proxy,
shall constitute a waiver of notice of such meeting, except as provided by
law.
SECTION 2.05. ADJOURNMENTS. Whenever a meeting of stockholders,
annual or special, is adjourned to another date, time or place, notice need
not be given of the adjourned meeting if the date, time and place thereof are
announced at the meeting at which the adjournment is taken. If the
adjournment is for more than 30 calendar 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 entitled to vote at the adjourned
meeting. At the adjourned meeting, any business may be transacted which
might have been transacted at the original meeting.
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When any meeting is convened, the presiding officer, if directed by
the Board, may adjourn the meeting if (a) no quorum is present for the
transaction of business, or (b) the Board determines that adjournment is
necessary or appropriate to enable the stockholders (i) to consider fully
information which the Board determines has not been made sufficiently or
timely available to stockholders or (ii) otherwise to exercise effectively
their voting rights.
SECTION 2.06. QUORUM. Except as otherwise provided by law or the
Certificate of Incorporation, whenever a class of stock of the Corporation is
entitled to vote as a separate class, or whenever classes of stock of the
Corporation are entitled to vote together as a single class, on any matter
brought before any meeting of the stockholders, whether annual or special,
holders of shares entitled to cast a majority of the votes entitled to be
cast by all the holders of the shares of stock of such class voting as a
separate class, or classes voting together as a single class, as the case may
be, outstanding and entitled to vote thereat, present in person or by proxy,
shall constitute a quorum for the transaction of business at all meetings of
stockholders, whether annual or special. If, however, such quorum shall not
be present in person or by proxy at any meeting of stockholders, the
stockholders entitled to vote thereat may adjourn the meeting from time to
time in accordance with Section 2.05 hereof until a quorum shall be present
in person or by proxy.
SECTION 2.07. VOTING. Unless otherwise provided in the Certificate
of Incorporation, each stockholder represented at a meeting of stockholders
shall be entitled to cast one vote for each share of capital stock entitled
to vote thereat held by such stockholder. Except as otherwise provided by
law or the Certificate of Incorporation or these Bylaws, when a quorum is
present with respect to any matter brought before any meeting of the
stockholders, the vote of the holders of stock casting a majority of the
votes entitled to be cast by all the holders of the stock constituting such
quorum shall decide any such matter. Votes need not be by written ballot,
unless the Board, in its discretion, requires any vote or votes cast at such
meeting to be cast by written ballot.
SECTION 2.08. PROXIES. Each stockholder entitled to vote at a
meeting of stockholders may authorize another person or persons to act for
such stockholder by proxy. Such proxy shall be filed with the Secretary
before such meeting of stockholders at such time as the Board may require.
No proxy shall be voted or acted upon more than three years from its date,
unless the proxy provides for a longer period.
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SECTION 2.09. ORGANIZATION. Meetings of stockholders of the
Corporation shall be presided over by Chairman in accordance with Section
5.05 of Article V, or in the absence of either Chairman by the President, or
in the absence of the President by a director chosen by a majority of the
directors present at such meeting. The Secretary or, in the absence of the
Secretary, an Assistant Secretary, shall act as secretary of the meeting, but
in the absence of the Secretary and any Assistant Secretary, the chairman of
the meeting may appoint any person to act as secretary of the meeting.
SECTION 2.10. ADVANCE NOTICE OF BUSINESS TO BE TRANSACTED AT ANNUAL
MEETINGS. (a) To be properly brought before the annual meeting of
stockholders, business must be either (i) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board (or any
duly authorized committee thereof), (ii) otherwise properly brought before
the meeting by or at the direction of the Board (or any duly authorized
committee thereof), or (iii) otherwise properly brought before the meeting by
any stockholder of the Corporation (A) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 2.10 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (B) who complies with the notice procedure set forth in this
Section 2.10. In addition to any other applicable requirements, including
but not limited to the requirements of Rule 14a-8 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), for business to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of this Section
2.10(a), such stockholder must have given timely notice thereof in proper
written form to the Secretary.
(b) To be timely, a stockholder's notice to the Secretary pursuant
to clause (iii) of Section 2.10(a) must be delivered to or mailed and
received at the principal executive offices of the Corporation, not less than
60 days nor more than 90 days prior to the anniversary date of the
immediately preceding annual meeting of stockholders; PROVIDED, HOWEVER, that
in the event that the annual meeting is called for a date that is not within
30 days before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of business
on the tenth day following the day on which such notice of the date of the
annual meeting is mailed or such public disclosure of the date of the annual
meeting is made, whichever first occurs.
(c) To be in proper written form, a stockholder's notice to the
Secretary pursuant to clause (iii) of Section 2.10(a) must set forth as to each
matter such stockholder proposes to bring before the annual meeting (i) a brief
description of the business desired to be brought before the meeting and the
reasons for conducting such business at the meeting, (ii) the name and record
address of such stockholder, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
such stockholder, together with evidence reasonably satisfactory to the
Secretary of such beneficial ownership, (iv) a description of all arrangements
or understandings between such stockholder
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and any other person or persons (including their names) in connection with
the proposal of such business by such stockholder and any material interest
of such stockholder in such business, and (v) a representation that such
stockholder intends to appear in person or by proxy at the annual meeting to
bring such business before the meeting.
(d) Notwithstanding anything in these Bylaws to the contrary, no
business shall be conducted at the annual meeting of stockholders except
business brought before such meeting in accordance with the procedures set
forth in this Section 2.10; PROVIDED, HOWEVER, that, once business has been
properly brought before such meeting in accordance with such procedures,
nothing in this Section 2.10 shall be deemed to preclude discussion by any
stockholder of any such business. If the chairman of such meeting determines
that business was not properly brought before the meeting in accordance with
the foregoing procedures, the chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall
not be transacted.
SECTION 2.11. NO ACTION WITHOUT MEETING. No action required or
permitted to be taken at any meeting of stockholders may be taken without a
meeting and the power of stockholders to consent in writing to the taking of
any action without a meeting is specifically denied.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. GENERAL POWERS. The property, business and affairs
of the Corporation shall be managed by, or under the direction of, the Board,
which may exercise all such powers of the Corporation and do all such lawful
acts and things that are not conferred upon or reserved to the stockholders
by law, the Certificate of Incorporation or these Bylaws.
SECTION 3.02. NUMBER, CLASSES AND TERM OF OFFICE. Unless otherwise
provided in the Certificate of Incorporation, the Board shall consist of ten
(10) directors, or any number of directors as the Board may fix by the vote of a
majority of the entire Board. The directors shall be divided into three
classes, designated Class I (four directors), Class II (three directors) and
Class III (three directors). Except as otherwise provided in the Certificate of
Incorporation, the term of the initial Class I directors shall terminate on the
date of the 1998 annual meeting of stockholders; the term of the initial Class
II directors shall terminate on the date of the 1999 annual meeting of
stockholders; and the term of the initial Class III directors shall terminate on
the date of the 2000 annual meeting of stockholders. At each annual meeting of
stockholders, beginning with the 1998 annual meeting of stockholders, successors
to the class of directors whose term expires at that
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annual meeting shall be elected for a three-year term by a plurality of the
votes. If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. A director
shall hold office until the annual meeting for the year in which his term
expires and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal
from office. The term of a director elected by stockholders to fill a newly
created directorship or other vacancy shall expire at the same time as the
terms of the other directors of the class for which the new directorship is
created or in which the vacancy occurred. Any vacancy on the Board of
Directors that results from an increase in the number of directors and any
other vacancy occurring on the Board of Directors, howsoever resulting, may
be filled only by a majority of the directors then in office, even if less
than a quorum, or by a sole remaining director. Any director so elected by
the Board of Directors to fill a vacancy shall hold office for a term that
shall coincide with the term of the class to which such director shall have
been elected. Directors need not be stockholders of the Company.
SECTION 3.03. RESIGNATION. Any director may resign at any time by
giving written notice to the Board, the Chairman or the Secretary. Any such
resignation shall take effect at the time specified in such notice or, if the
time when it shall become effective shall not be specified therein,
acceptance of such resignation shall not be necessary to make it effective.
SECTION 3.04. REMOVAL. Subject to the provisions of the
Certificate of Incorporation and the DGCL, any or all of the directors may be
removed only for due cause by vote of the record holders of a majority of the
holders of stock entitled to vote thereon at a meeting of the stockholders;
PROVIDED, HOWEVER, that no such removal can be made at such meeting unless
the notice thereof specifies such removal and the reasons thereof as one of
the matters that shall be considered at such meeting.
SECTION 3.05. MEETINGS. (a) ANNUAL MEETINGS. As soon as
practicable after each annual election of directors, the Board shall meet for
the purpose of organization and the transaction of other business, unless it
shall have transacted all such business by written consent pursuant to
Section 3.06 hereof.
(b) OTHER MEETINGS. Other meetings of the Board shall be held as
the Board shall from time to time determine or upon call by either of the
Chairman, the President, a majority of the entire Board or stockholders
having 15% or more of the total voting power of all outstanding securities of
the Corporation then entitled to vote generally in the election of directors,
voting together as a single class.
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(c) NOTICE OF MEETINGS. Regular meetings of the Board may be held
without notice. The Secretary shall give written notice to each director of
each special meeting of such meeting. Notice of each such meeting shall be
given to each director, either by mail, at least two days before the day on
which such meeting is to be held, or by telecopy, telegraph, cable, or other
form of recorded communication, or be delivered personally or by telephone 48
hours prior to such meeting is to be held. A written waiver of notice,
signed by the director entitled to notice, whether before or after the time
of the meeting referred to in such waiver, shall be deemed equivalent to
notice. Attendance of a director at a meeting of the Board shall constitute a
waiver of notice of such meeting, except as provided by law.
(d) PLACE OF MEETINGS. The Board may hold its meetings at such
place or places within or without the State of Delaware as the Board may from
time to time, by resolution, determine, or as shall be designated in the
respective notices or waivers of notice of such meetings.
(e) QUORUM AND MANNER OF ACTING. Except as otherwise provided by
law, the Certificate of Incorporation or these Bylaws, a majority of the
total number of directors then in office shall be necessary at any meeting of
the Board in order to constitute a quorum for the transaction of business at
such meeting, and the affirmative vote of a majority of those directors
present at any such meeting at which a quorum is present shall be necessary
for the passage of any resolution or act of the Board. In the absence of a
quorum for any such meeting, a majority of the directors present thereat may
adjourn such meeting from time to time until a quorum shall be present.
Notice of any adjourned meeting need not be given.
(f) MINUTES OF MEETINGS. The Secretary or, in the case of his
absence, any person (who shall be an Assistant Secretary, if an Assistant
Secretary is present) whom the chairman of the meeting shall appoint shall
act as secretary of such meeting and keep the minutes thereof.
SECTION 3.06. ACTION BY CONSENT. 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 a written consent or consents thereto is signed by
all the members of the Board or such committee, as the case may be, and such
written consent or consents are filed with the minutes of the proceedings of
the Board or such committee.
SECTION 3.07. ACTION BY MEANS OF TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT. Any one or more members of the Board, or of any
committee thereof, may participate in a meeting of the Board or 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 participation in a meeting by such means shall constitute
presence in person at such meeting.
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SECTION 3.08. COMPENSATION. Each director, in consideration of
his serving as such, shall be entitled to receive from the Corporation such
amount per annum, if any, or such fees, if any, for attendance at meetings of
the Board or of any committee thereof, or both, as the Board shall from time
to time determine. The Board may likewise provide that the Corporation shall
reimburse each director or member of a committee for any expenses incurred by
him on account of his attendance at any such meeting. Nothing contained in
this Section 3.09 shall be construed to preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD
SECTION 4.01. COMMITTEES. (a) The Board, by resolution passed by
a majority of the number of directors constituting the entire Board, may
designate members of the Board to constitute one or more committees which
shall in each case consist of such number of directors, not fewer than two,
and, to the extent permitted by law and provided in the resolution
establishing such committee, shall have and exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified members
at any meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
absent or disqualified member. A majority of all the members of any such
committee may fix its rules of procedure, determine its action and fix the
time and place, whether within or without the state of Delaware, of its
meetings and specify what notice thereof, if any, shall be given, unless the
Board shall otherwise by resolution provide. The Board, upon approval of a
majority of the number of directors constituting the entire Board, shall have
power to change the members of any such committee at any time, to fill
vacancies therein and to discharge any such committee, either with or without
cause, at any time. Each committee shall keep regular minutes and report to
the Board when required.
(b) The Board shall establish, pursuant to the provisions of
subsection 4.01(b) of this Article IV, an Executive Committee, an Audit
Committee and a Compensation Committee. The Executive Committee shall have all
the powers and authority of the Board in the management of the business and
affairs of the Corporation that may be properly delegated by the Board to a
committee of the Board. The Audit Committee and the
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Compensation Committee shall have all the powers and authority which may be
properly delegated to such committees by the Board.
ARTICLE V
OFFICERS
SECTION 5.01. OFFICERS. The officers of the Corporation shall be
the Chairman, the President, the Secretary and a Treasurer and may include
one or more Vice Presidents and one or more Assistant Secretaries and one or
more Assistant Treasurers. Any two or more offices may be held by the same
person.
SECTION 5.02. AUTHORITY AND DUTIES. All officers shall have such
authority and perform such duties in the management of the Corporation as may
be provided in these Bylaws or, to the extent not so provided, by resolution
of the Board.
SECTION 5.03. TERM OF OFFICE, RESIGNATION AND REMOVAL. (a) Each
officer shall be appointed by the Board and shall hold office for such term
as may be determined by the Board; PROVIDED, HOWEVER, that the Chairman shall
be appointed by a majority of the number of directors constituting the entire
Board. Each officer shall hold office until his successor has been appointed
and qualified or his earlier death or resignation or removal in the manner
hereinafter provided. The Board may require any officer to give security for
the faithful performance of his duties.
(b) Any officer may resign at any time by giving written notice to
the Board, the Chairman or the Secretary. Such resignation shall take effect
at the time specified in such notice or, if the time be not specified, upon
receipt thereof by the Board, the Chairman or the Secretary, as the case may
be. Unless otherwise specified therein, acceptance of such resignation shall
not be necessary to make it effective.
(c) All officers and agents appointed by the Board shall be subject
to removal, with or without cause, at any time by the Board.
SECTION 5.04. VACANCIES. Any vacancy occurring in any office of
the Corporation, for any reason, shall be filled by action of the Board.
Unless earlier removed pursuant to Section 5.03 hereof, any officer appointed
by the Board to fill any such vacancy shall serve only until such time as the
unexpired term of his predecessor expires unless reappointed by the Board.
SECTION 5.05. THE CHAIRMAN. (a) The Chairman shall have general and
active management and control of the business and affairs of the Corporation,
subject to the
10
control of the Board, and shall see that all orders and resolutions of the
Board are carried into effect. The Chairman shall perform all duties
incident to the office of Chairman of the Board and all such other duties as
may from time to time be assigned to the Chairman by the Board or these
Bylaws. The Board may in its sole discretion appoint two person to be
Co-Chairmen of the Corporation and each such Co-Chairmen will have the same
powers and authority as if each Co-Chairman served as the sole Chairman of
the Corporation, except as otherwise provided in these Bylaws and by any
resolution of the Board.
(b) The Chairman will have the power to call special meetings of
stockholders and to call special meetings of the Board. The Chairman will
preside over the meetings of the Board and the meetings of the stockholders.
If there are Co-Chairmen of the Corporation, the Co-Chairmen will preside
over the meetings of the Board and the meetings of the stockholders on a
rotational basis such that at each subsequent meeting of the Board and each
subsequent meeting of the stockholders, the Co-Chairman who did not preside
at the most recent meeting of the Board, in the case of meetings of the
Board, or the most recent meeting of stockholders, in the case of meetings of
the stockholders, shall preside if present[; PROVIDED, HOWEVER, that Xxxx
Xxxxx will preside over the first two meetings of the Board and the first two
meetings of the stockholders of the Corporation]. If the Chairman or either
of the Co-Chairmen is not present at a meeting of the Board or at a meeting
of the stockholders, the President shall preside, and if the President if not
present at such meeting, a director chosen by a majority of the directors
present shall preside over the meeting.
SECTION 5.06. THE PRESIDENT. The President shall be the chief
executive officer of the Corporation and shall exercise supervision over the
business of the Corporation and over its several officers, subject, however,
to the oversight of the Chairman. The President shall perform all duties
incident to the office of President and all such other duties as may from
time to time be assigned to him by the Board or these Bylaws.
SECTION 5.07. VICE PRESIDENTS. Vice Presidents, if any, in such
order as may be determined by the Board, shall generally assist the President
and perform such other duties as the Board or the President shall prescribe,
and in the absence or disability of the President, shall perform the duties
and exercise the powers of the President.
SECTION 5.08. THE SECRETARY. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of stockholders
and shall record all votes and the minutes of all proceedings in a book to be
kept for that purpose, and shall perform the same duties for any committee of
the Board when so requested by such committee. He shall give or cause to be
given notice of all meetings of stockholders and of the Board, shall perform
such other duties as may be prescribed by the Board, the Chairman or the
President and shall act under the supervision of the President. He shall keep
in safe custody the seal of the Corporation and affix the same to any instrument
that requires that the seal be affixed to it and which shall have been duly
authorized for signature in the name of
11
the Corporation and, when so affixed, the seal shall be attested by his
signature or by the signature of the Treasurer of the Corporation or an
Assistant Secretary or Assistant Treasurer of the Corporation. He shall keep
in safe custody the certificate books and stockholder records and such other
books and records of the Corporation as the Board, the Chairman or the
President may direct and shall perform all other duties incident to the
office of Secretary and such other duties as from time to time may be
assigned to him by the Board, the Chairman or the President.
SECTION 5.09. ASSISTANT SECRETARIES. Assistant Secretaries of the
Corporation, if any, in order of their seniority or in any other order
determined by the Board, shall generally assist the Secretary and perform
such other duties as the Board or the Secretary shall prescribe, and, in the
absence or disability of the Secretary, shall perform the duties and exercise
the powers of the Secretary.
SECTION 5.10. THE TREASURER. The Treasurer shall be the chief
financial officer of the Corporation, shall exercise supervision over all of
the financial affairs of the Corporation, shall have the care and custody of
all the funds of the Corporation and shall deposit such funds in such banks
or other depositories as the Board, or any officer or officers, or any
officer and agent jointly, duly authorized by the Board, shall, from time to
time, direct or approve. He shall disburse the funds of the Corporation
under the direction of the Board, the Chairman and the President. He shall
keep a full and accurate account of all moneys received and paid on account
of the Corporation and shall render a statement of his accounts whenever the
Board, the Chairman or the President shall so request. He shall perform all
other necessary actions and duties in connection with the administration of
the financial affairs of the Corporation and shall generally perform all the
duties usually appertaining to the office of treasurer of a corporation.
When required by the Board, he shall give bonds for the faithful discharge of
his duties in such sums and with such sureties as the Board shall approve.
SECTION 5.11. ASSISTANT TREASURERS. Assistant Treasurers of the
Corporation, if any, in order of their seniority or in any other order
determined by the Board, shall generally assist the Treasurer and perform
such other duties as the Board or the Treasurer shall prescribe, and, in the
absence or disability of the Treasurer, shall perform the duties and exercise
the powers of the Treasurer.
SECTION 5.12. ADDITIONAL OFFICERS. The Board may appoint such
other officers and assistant officers and agents as it shall deem necessary,
who shall hold their offices for such terms and shall have authority and
exercise such powers and perform such duties as shall be determined from time
to time by the Board, by resolution not inconsistent with these Bylaws, the
Chairman or by the President.
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[SECTION 5.13. REMOVAL OF CERTAIN OFFICERS. Neither of the Chairman
nor the President may be removed from office unless such removal shall have
first been approved by two-thirds of the number of directors constituting the
entire Board.]
ARTICLE VI
CHECKS, DRAFTS, NOTES AND PROXIES
SECTION 6.01. DIVIDENDS. Dividends shall be declared only out of
any assets or funds of the Corporation legally available for the payment of
dividends at such times as the Board shall direct. Dividends shall be paid
to holders of the stock of the Corporation in U.S. dollars.
SECTION 6.02. CHECKS, DRAFTS AND NOTES. All checks, drafts and
other orders for the payment of money, notes and other evidences of
indebtedness issued in the name of the Corporation shall be signed by such
officer or officers, agent or agents of the Corporation and in such manner as
shall be determined, from time to time, by resolution of the Board.
SECTION 6.03. EXECUTION OF PROXIES. The Chairman or the President,
or, in the absence or disability of all of them, any Vice President, may
authorize, from time to time, the execution and issuance of proxies to vote
shares of stock or other securities of other corporations held of record by
the Corporation and the execution of consents to action taken or to be taken
by any such corporation. All such proxies and consents, unless otherwise
authorized by the Board, shall be signed in the name of the Corporation by
the Chairman, the President or any Vice President.
ARTICLE VII
SHARES AND TRANSFERS OF SHARES
SECTION 7.01. CERTIFICATES OF STOCK. Every owner of shares of
stock of the Corporation shall be entitled to have a certificate evidencing
the number of shares of stock of the Corporation owned by him or it and
designating the class of stock to which such shares belong, which shall
otherwise be in such form as the Board shall prescribe. Each such
certificate shall bear the signature (or a facsimile thereof) of the
Chairman, the President or any Vice President and of the Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the
Corporation.
SECTION 7.02. RECORD. A record shall be kept of the name of the
person, firm or corporation owning the stock represented by each certificate
evidencing stock of the
13
Corporation issued, the number of shares represented by each such
certificate, and the date thereof, and, in the case of cancellation, the date
of cancellation. Except as otherwise expressly required by law, the person
in whose name shares of stock stand on the books of the Corporation shall be
deemed the owner thereof for all purposes as regards the Corporation.
SECTION 7.03. TRANSFER OF STOCK. (a) The transfer of shares of
stock and the certificates evidencing such shares of stock of the Corporation
shall be governed by Article 8 of Subtitle I of Title 6 of the Delaware Code
(the "UNIFORM COMMERCIAL CODE"), as amended from time to time.
(b) Registration of transfers of shares of stock of the Corporation
shall be made only on the books of the Corporation upon request of the
registered holder thereof, or of his attorney thereunto authorized by power
of attorney duly executed and filed with the Secretary, and upon the
surrender of the certificate or certificates evidencing such shares properly
endorsed or accompanied by a stock power duly executed.
SECTION 7.04. ADDRESSES OF STOCKHOLDERS. Each stockholder shall
designate to the Secretary an address at which notices of meetings and all
other corporate notices may be served or mailed to him, and, if any
stockholder shall fail to so designate such an address, corporate notices may
be served upon him by mail directed to him at his post office address, if
any, as the same appears on the share record books of the Corporation or at
his last known post office address.
SECTION 7.05. LOST, DESTROYED OR MUTILATED CERTIFICATES. A holder
of any shares of stock of the Corporation shall promptly notify the
Corporation of any loss, destruction or mutilation of any certificate or
certificates evidencing all or any such shares of stock. The Board may, in
its discretion, cause the Corporation to issue a new certificate in place of
any certificate theretofore issued by it and alleged to have been mutilated,
lost, stolen or destroyed, upon the surrender of the mutilated certificate
or, in the case of loss, theft or destruction of the certificate, upon
satisfactory proof of such loss, theft or destruction, and the Board may, in
its discretion, require the owner of the lost, stolen or destroyed
certificate or his legal representative to give the Corporation a bond
sufficient to indemnify the Corporation against any claim made against it on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of such new certificate.
SECTION 7.06. FACSIMILE SIGNATURES. Any or all of the signatures
on a certificate evidencing shares of stock of the Corporation may be
facsimiles.
SECTION 7.07. REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation or these Bylaws, concerning the issue, transfer and registration
of certificates evidencing stock
14
of the Corporation. It may appoint, or authorize any principal officer or
officers to appoint, one or more transfer agents and one or more registrars,
and may require all certificates of stock to bear the signature or signatures
(or a facsimile or facsimiles thereof) of any of them. The Board may at any
time terminate the employment of any transfer agent of any registrar of
transfers. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate shall cease
to be such officer, transfer agent or registrar, whether because of death,
resignation, removal or otherwise, before such certificate or certificates
shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though that person or persons who signed or whose facsimile
signature has been placed upon such certificate or certificates had not
ceased to be such officer, transfer agent or registrar.
SECTION 7.08. RECORD DATE. In order that the corporation may
determine the stockholders entitled to notice of, or to vote at, any meeting
of stockholders or any adjournment thereof, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other lawful action, the board may fix, in advance,
a record date, which shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other such
action. A determination of stockholders entitled to notice of, or to vote
at, any meeting of stockholders shall apply to any adjournment of the
meeting; PROVIDED, HOWEVER, that the Board may fix a new record date for the
adjourned meeting.
SECTION 7.09. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its
records as the owner of shares of stock to receive dividends and to vote as
such owner, shall be entitled to hold liable for calls and assessments a
person registered on its records as the owner of shares of stock, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares of stock on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
ARTICLE VIII
BOOKS AND RECORDS
SECTION 8.01. BOOKS AND RECORDS. The books and records of the
Corporation may be kept at such place or places within or without the State
of Delaware as the Board may from time to time determine.
15
ARTICLE IX
SEAL
SECTION 9.01. SEAL. The Board may approve and adopt a suitable
corporate seal, which shall bear the full name of the Corporation.
ARTICLE X
FISCAL YEAR
SECTION 10.01. FISCAL YEAR. The fiscal year of the Corporation
shall end on the thirty-first day of December of each year unless changed by
resolution of the Board.
ARTICLE XI
INDEMNIFICATION
SECTION 11.01. INDEMNIFICATION. (a) GENERAL. The Corporation
shall indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Corporation) by reason of the fact that he
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 another corporation, partnership, joint venture, trust
or other enterprise, to the full extent authorized or permitted by law, as
now or hereafter in effect, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement or conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that the person
seeking indemnification did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
16
(b) DERIVATIVE ACTIONS. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he 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 another corporation, partnership, joint venture, trust or other
enterprise, to the full extent authorized or permitted by law, as now or
hereafter in effect, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement
of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation; PROVIDED, HOWEVER, that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper.
(c) SUCCESSFUL DEFENSE. To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) above, or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection therewith.
(d) PROCEEDINGS INITIATED BY ANY PERSON. Notwithstanding anything
to the contrary contained in subsections (a) or (b) above, except for
proceedings to enforce rights to indemnification, the Corporation shall not
be obligated to indemnify any person in connection with a proceeding (or part
thereof) initiated by such person unless such proceeding (or part thereof)
was authorized in advance, or unanimously consented to, by the Board.
(e) PROCEDURE. Any indemnification under subsections (a) and (b)
above, (unless ordered by a court), shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in
subsections (a) and (b) above. Such determination shall be made (i) by a
majority vote of a quorum of the directors who are not parties to such
action, suit or proceeding, or (ii) if such a quorum is not obtainable, or,
even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the stockholders
of the Corporation.
17
(f) ADVANCEMENT OF EXPENSES. Expenses (including attorneys' fees)
incurred by a director or an officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by
the Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking in form and substance satisfactory
to the Corporation by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation pursuant to this Article XI or as otherwise
authorized by law. Such expenses (including attorneys' fees) incurred by
other employees and agents may be so paid upon such terms and conditions, if
any, as the Board deems appropriate.
(g) RIGHTS NOT EXCLUSIVE. The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article XI shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
law, bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
(h) INSURANCE. The Corporation may 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 another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of the DGCL.
(i) DEFINITION OF "CORPORATION". For purposes of this Article XI,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is
or was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article XI with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if
its separate existence had continued.
18
(j) CERTAIN OTHER DEFINITIONS. For purposes of this Article XI,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
service by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests
of the Corporation," as referred to in this Article XI.
(k) CONTINUATION OF RIGHTS. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article XI shall, unless
otherwise provided when authorized or ratified, 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 a person.
(l) REPEAL OR MODIFICATION. Any repeal or modification of this
Article XI by the stockholders of the Corporation shall not adversely affect
any rights to indemnification and to advancement of expenses that any person
may have at the time of such repeal or modification with respect to any acts
or omissions occurring prior to such repeal or modification.
(m) ACTION AGAINST CORPORATION. Notwithstanding any provisions of
this Article XI to the contrary, no person shall be entitled to
indemnification or advancement of expenses under this Article XI with respect
to any action, suit or proceeding, or any claim therein, brought or made by
him against the Corporation.
ARTICLE XII
AMENDMENTS
SECTION 12.01. AMENDMENTS. These Bylaws, or any of them, may be
altered, amended or repealed, or new bylaws may be made, but only to the
extent any such alteration, amendment, repeal or new bylaw is not
inconsistent with any provision of the Certificate of Incorporation, by
two-thirds of the number of directors constituting the entire Board.
