Exhibit 3.2
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BROADVIEW NETWORKS HOLDINGS, INC.
Incorporated under the laws
of the State of Delaware
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AMENDED AND RESTATED BYLAWS
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Effective as of ___________, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE IOffices
SECTION 1.1 Registered Office............................................1
SECTION 1.2 Other Offices................................................1
ARTICLE IIMeetings of Stockholders
SECTION 2.1 Annual Meetings..............................................1
SECTION 2.2 Special Meetings.............................................1
SECTION 2.3 Notice of Meetings...........................................2
SECTION 2.4 Quorum.......................................................2
SECTION 2.5 Organization.................................................3
SECTION 2.6 Order of Business............................................3
SECTION 2.7 Voting.......................................................3
SECTION 2.8 Informal Action by Stockholders..............................4
SECTION 2.9 Voting Procedures and Inspections of Elections...............4
SECTION 2.10 Advance Notification of Proposals at Stockholders' Meetings..5
SECTION 2.11 List of Stockholders.........................................5
SECTION 2.12 Proxies......................................................6
ARTICLE IIIBoard of Directors
SECTION 3.1 General Powers...............................................6
SECTION 3.2 Number and Term of Office....................................6
SECTION 3.3 Election of Directors........................................6
SECTION 3.4 Resignation, Removal and Vacancies...........................7
SECTION 3.5 Meetings.....................................................7
SECTION 3.6 Directors' Consent in Lieu of Meeting........................8
SECTION 3.7 Action by Means of Conference Telephone
or Similar Communications Equipment..........................9
SECTION 3.8 Committees...................................................9
SECTION 3.9 Compensation.................................................9
SECTION 3.10 Preferred Stock Directors....................................9
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ARTICLE IVOfficers
SECTION 4.1 Executive Officers...........................................10
SECTION 4.2 Authority and Duties.........................................10
SECTION 4.3 Other Officers...............................................10
SECTION 4.4 Term of Office, Resignation and Removal......................10
SECTION 4.5 Vacancies....................................................10
SECTION 4.6 The Chairman.................................................11
SECTION 4.7 Chief Executive Officer......................................11
SECTION 4.8 President....................................................11
SECTION 4.9 Vice President...............................................11
SECTION 4.10 The Secretary................................................11
SECTION 4.11 The Chief Financial Officer..................................12
ARTICLE VContracts, Checks, Drafts, Bank Accounts, Etc.
SECTION 5.1 Execution of Documents........................................12
SECTION 5.2 Deposits......................................................12
SECTION 5.3 Proxies in Respect of Stock or Other
Securities of Other Corporations..............................12
ARTICLE VIShares and Their Transfer; Fixing Record Date
SECTION 6.1 Certificates for Shares.......................................13
SECTION 6.2 Transfer of Stock.............................................13
SECTION 6.3 Addresses of Stockholders.....................................13
SECTION 6.4 Replacement...................................................14
SECTION 6.5 Regulations...................................................14
SECTION 6.6 Fixing Date for Determination of Stockholders of Record.......14
ARTICLE VIISeal
ARTICLE VIIIFiscal Year
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ARTICLE IXIndemnification and Insurance
SECTION 9.1 Indemnification...............................................15
SECTION 9.2 Insurance.....................................................18
SECTION 9.3 Definitions...................................................18
ARTICLE XSection 203
ARTICLE XIAmendment
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AMENDED AND RESTATED BYLAWS
of
BROADVIEW NETWORKS HOLDINGS, INC.
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "GCL") and the Amended and Restated Certificate of
Incorporation of Broadview Networks Holdings, Inc., a Delaware corporation (the
"Corporation") then in effect (the "Certificate"). In the event of a direct
conflict between the provisions of these Bylaws and (i) the mandatory provisions
of the GCL or the provisions of the Certificate, such provisions of the GCL or
the Certificate, as the case may be, will be controlling or (ii) a permissive
provision of the GCL, such provision of the GCL shall be controlling unless
otherwise decided by the Corporation's Board of Directors (the "Board").
ARTICLE I
Offices
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SECTION 1.1 Registered Office. The registered office of the Corporation
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in the State of Delaware shall be at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, in the County of New Castle, and the registered agent in charge
thereof is Corporation Service Company.
SECTION 1.2 Other Offices. The Corporation may also have an office or
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offices at any other place or places within or outside the State of Delaware.
ARTICLE II
Meetings of Stockholders
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SECTION II.1 Annual Meetings. The annual meeting of the stockholders for
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the election of directors, and for the transaction of such other business as may
properly come before the meeting, shall be held at such place, date and hour as
shall be fixed by the Board, within or without the State of Delaware, and
designated in the notice of meeting.
SECTION II.2 Special Meetings. Except as otherwise required by law or the
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Certificate, special meetings of the stockholders may be called only by the
Board or a committee of the Board expressly authorized to call a special
meeting, and the business to be conducted at a special meeting is limited to
business brought before the meeting by the Board.
SECTION II.3 Notice of Meetings. Except as otherwise required by law or
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by the Certificate or these Bylaws, notice of each annual or special meeting of
the stockholders shall be given to each stockholder of record entitled to vote
at such meeting and, if and to the extent required by law, to each stockholder
of the corporation, not less than twenty (20) nor more than sixty (60) days
before the day on which the meeting is to be held, except that notice of a
meeting to act on an amendment to the Certificate, a plan of merger or share
exchange, a proposed sale, lease, exchange or other disposition of all or
substantially all of the assets of the Corporation other than in the usual or
regular course of business, or the dissolution of the Corporation shall be given
no fewer than thirty (30) days nor more than sixty (60) days before the meeting
date. Written notice may be transmitted by mail (postage prepaid), private
carrier, or personal delivery; telegraph or teletype; cable or other telephonic
transmission to the stockholder at such person's address as it appears in the
records of the Corporation. If these forms of written notice are impracticable
in the view of the Board, the Chairman of the Board, the Chief Executive Officer
or the Secretary, written notice may be transmitted by an advertisement in a
newspaper of general circulation in the area where published. If mailed, such
notice shall be deemed effective when deposited in the United States mail,
first-class postage prepaid, properly addressed to the stockholder at such
person's address as it appears in the Corporation's records. Notice dispatched
by telegraph, teletype, or facsimile equipment shall be deemed effective when
dispatched to the shareholder's address, telephone number or other number
appearing on the records of the corporation. Any notice given by publication as
herein provided shall be deemed effective five (5) days after first publication.
Every such notice shall state the place, the date and hour of the meeting, and,
in case of a special meeting, the purpose or purposes for which the meeting is
called. Except as otherwise required by law, notice of any meeting of
stockholders shall not be required to be given to any stockholder who shall
attend such meeting in person or by proxy, or who shall, in person or by
attorney thereunto authorized, waive such notice in writing to be delivered to
the Corporation (for inclusion in the minutes or the corporate records), either
before or after such meeting. Except as otherwise provided in these Bylaws,
neither the business to be transacted at, nor the purpose of, any meeting of the
stockholders need be specified in any such notice or waiver of notice. Notice
of any adjourned meeting of stockholders shall not be required to be given,
except when expressly required by law.
SECTION II.4 Quorum. At each meeting of the stockholders, the holders of
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at least a majority of the issued and outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum for the transaction of business, except as
otherwise required by law, these Bylaws or the Certificate. In the absence of a
quorum, a majority in interest of the stockholders present in person or
represented by proxy and entitled to vote, or, in the absence of all the
stockholders entitled to vote, any officer entitled to preside at, or act as
secretary of, such meeting, shall have the power to adjourn the meeting to
another time and/or place, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At any such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally called.
If the
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adjournment is for more than one hundred thirty (130) 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. Once a share is represented for any purpose at a
meeting other than solely to object to holding the meeting or transacting
business thereat, it is deemed present for quorum purposes for the remainder of
the meeting and any adjournment thereof (unless a new record date is or must be
set for the adjourned meeting) notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
SECTION II.5 Organization. At each meeting of the stockholders, one of
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the following shall act as chairman of the meeting and preside thereat, in the
following order of precedence:
(a) the Chairman;
(b) the Chief Executive Officer;
(c) the President;
(d) any Vice President;
(e) any officer of the Corporation designated by the Board to act as
chairman of such meeting and to preside thereat; or
(f) a stockholder of record who shall be chosen chairman of such
meeting by a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat.
The Secretary or, if such person shall be presiding over such meeting in
accordance with the provisions of this Section 2.5 or if such person shall be
absent from such meeting, the person (who shall be an Assistant Secretary, if an
Assistant Secretary has been appointed and is present) whom the chairman of such
meeting shall appoint, shall act as secretary of such meeting and keep the
minutes thereof.
SECTION II.6 Order of Business. The order of business at each meeting of
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the stockholders shall be determined by the chairman of such meeting.
SECTION II.7 Voting. Except as may otherwise be required by law or these
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Bylaws, stockholders shall have the voting rights specified in the Certificate.
SECTION II.8 Informal Action by Stockholders. Any action required or
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permitted to be taken by the stockholders must be effected at a duly called
annual or special meeting of such stockholders and may not be effected by a
consent in writing by any such stockholders.
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SECTION II.9 Voting Procedures and Inspections of Elections.
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(a) The Corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written
report thereof. The Corporation may designate one or more persons as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the
person presiding at the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before entering upon the discharge of such
person's duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of
such person's ability.
(b) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a 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 shares represented at the meeting, and their count of all votes
and ballots. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the
inspectors.
(c) The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the inspectors after the
closing of the polls unless a court of competent jurisdiction, upon
application by a stockholder, shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those 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 the record owner to cast or more votes than the stockholder
holds of record. If the inspectors consider other reliable information for
the limited purpose permitted in this Section 2.9, the inspectors at the
time they make their certification pursuant to subsection (b)(v) of this
Section 9 shall specify the precise information considered by them
including the person or persons from whom they obtained the information,
when the information was obtained, the means by which the information was
obtained and the basis for the inspectors' belief that such information is
accurate and reliable.
SECTION II.10 Advance Notification of Proposals at Stockholders' Meetings.
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If a stockholder desires to submit a proposal for consideration at an annual
stockholders' meeting,
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or to nominate persons for election as directors at any stockholders' meeting
duly called for the election of directors, written notice of such stockholders'
intent to make such a proposal or nomination must be given and received by the
Secretary of the Corporation at the principal executive offices of the
Corporation either by personal delivery or by United States mail not later than
sixty (60) days or more than ninety (90) days prior to the anniversary date of
the immediately preceding annual meeting. If the annual meeting is set for a
date that is not within thirty (30) calendar days of the anniversary date of the
immediately preceding annual meeting, notice by the stockholder must be
delivered by the close of business on the tenth day following the date on which
notice of such meeting is first sent or given to stockholders. Each notice shall
describe the proposal or nomination in sufficient detail for the proposal or
nomination to be summarized on the agenda for the meeting and shall set forth:
(i) the name and address, as it appears on the books of the Corporation, of the
stockholder who intends to make the proposal or nomination; (ii) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to present such proposal or nomination; and (iii) the
class and number of shares of the Corporation which are beneficially owned by
the stockholder. In addition, in the case of a stockholder proposal, the notice
shall set forth the reasons for conducting such proposed business at the meeting
and any material interest of the stockholder in such business. In the case of a
nomination of any person for election as a director, the notice shall set forth:
(i) the name and address of any person to be nominated; (ii) a description of
all arrangements or understandings between the stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nomination or nominations are to be made by the stockholder; (iii) such
other information regarding such nominee proposed by such stockholder as would
be required to be included in a proxy statement filed pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended; and (iv) the consent of
each nominee to serve as a director of the Corporation if so elected. The
presiding officer of the meeting shall, if the facts warrant, refuse to
acknowledge a proposal or nomination not made in compliance with the foregoing
procedure, and any such proposal or nomination not properly brought before the
meeting shall not be considered.
SECTION II.11 List of Stockholders. It shall be the duty of the Secretary
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or other officer of the Corporation who shall have charge of its stock ledger to
prepare and make, at least ten (10) days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such list shall
be open to the examination of any stockholder, shareholder's agent, or
shareholder's attorney, for any purpose germane to any such meeting, during
ordinary business hours, for a period of at least ten (10) days prior to such
meeting, either at a place within the city where such meeting is to be held,
which place shall be specified in the notice of the meeting or, if not so
specified, at the place where the meeting is to be held. Such list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder, shareholder's agent or
shareholder's attorney during the meeting or adjournment.
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SECTION II.12 Proxies. A stockholder may vote its shares either in person
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or by proxy. A stockholder may appoint a proxy to vote or otherwise act for the
stockholder (including authorizing the proxy to receive, or to waive, notice of
any stockholders' meeting within the effective period of such proxy) by signing
an appointment form, either personally or by the stockholders' attorney-in-fact.
An appointment of a proxy is effective when received by the Secretary or other
office or agent authorized to tabulate votes and is effective for eleven (11)
months unless a longer period is expressly provided in the appointment form.
The proxy's authority may be limited to a particular meeting or may be general
and authorize the proxy to represent the stockholder at any meeting of
stockholders held within the time provided in the appointment form. Subject to
the GCL and to any express limitation on the proxy's authority appearing on the
face of the appointment form, the Corporation is entitled to accept the proxy's
vote or other action as that of the stockholder making the appointment.
ARTICLE III
Board of Directors
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SECTION III.1 General Powers. The business, property and affairs of the
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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 as are not by law or by the Certificate directed or required to be
exercised or done by the stockholders.
SECTION III.2 Number and Term of Office. The number of directors shall be
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fixed in accordance with the Certificate. The Board shall be classified as set
forth in the Certificate. Directors need not be stockholders. Each director
shall hold office until such person's successor is elected and qualified, or
until such person's earlier death, resignation, retirement, disqualification or
removal in the manner hereinafter provided. The number of directors may be
changed from time to time in accordance with the Certificate, but no decrease in
the number of directors shall have the effect of shortening the term of any
incumbent director.
SECTION III.3 Election of Directors. At each meeting of the stockholders
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for the election of directors at which a quorum is present, the persons
receiving the greatest number of votes, up to the number of directors to be
elected, of the stockholders present in person or by proxy and entitled to vote
thereon, shall be elected directors of the class or classes for which the
election was held; provided that for purposes of such vote no stockholder shall
be allowed to cumulate its votes. Elections of directors shall be by written
ballot.
SECTION III.4 Resignation, Removal and Vacancies.
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(a) Resignation. Any director may resign at any time by giving
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written notice to the Board, the Chairman, the Chief Executive Officer or
the Secretary. Such resignation shall take effect at the time specified
therein or, if the time be not specified, upon delivery thereof; and,
unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
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(b) Removal. Any director may be removed from office only for cause
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by the affirmative vote of the holders of at least two-thirds (2/3) of all
the Voting Stock (as defined below), voting together as a single class.
"Voting Stock" shall mean the common stock and any preferred stock entitled
to vote generally in the election of directors of the Corporation.
(c) Vacancies. Except as otherwise required by law, vacancies on the
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Board and newly created directorships may be filled by a majority of the
directors then in office though less than a quorum, and each director so
chosen shall hold office for the remaining term of the class of directors
to which such person is elected. If there are no directors in office, then
an election of directors may be held in the manner provided by law.
SECTION III.5 Meetings.
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(a) Regular Meetings. As soon as practicable after each annual
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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 6 of this Article III.
(b) Special Meetings. Other meetings of the Board shall be held at
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such times and places as the Board, the Chairman, the Chief Executive
Officer or any two directors shall from time to time determine.
(c) Notice of Meetings. Notice shall be given to each director for
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each regular and special meeting, including the time, place and purpose of
such meeting. Notice of each such meeting shall be mailed to each
director, addressed to such person at such person's residence or usual
place of business, at least two (2) days before the date on which such
meeting is to be held, or shall be sent to such person at such place by
telegraph, cable, wireless or other form of recorded communication, or be
delivered personally or by telephone not later than the day before the day
on which such meeting is to be held, but notice need not be given to any
director who shall attend such meeting. A written waiver of notice, signed
by the person entitled thereto and delivered to the Corporation, whether
before or after the time of the meeting stated therein, shall be deemed
equivalent to notice.
(d) Place of Meetings. The Board may hold its meetings at such place
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or places within or outside the State of Delaware as the Board may from
time to time determine, or as shall be designated in the respective notices
or waivers of notice thereof.
(e) Quorum and Manner of Acting. A majority of the total number of
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directors then in office shall be present in person at any meeting of the
Board in order to
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constitute a quorum for the transaction of business at such meeting, and
the 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, except as otherwise expressly required by
law, the Certificate or these Bylaws. 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 and no further
notice thereof need be given. A director who is in attendance at a meeting
of the Board but who abstains from the vote on any matter by announcing
such person's abstention to the person acting as secretary of the meeting
for inclusion in the minutes and not voting on such matter shall not be
deemed present at such meeting for purposes of the preceding sentence with
respect to such vote, but shall be deemed present at such meeting for all
other purposes.
(f) Organization. At each meeting of the Board, one of the following
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shall act as chairman of the meeting and preside thereat, in the following
order of precedence:
(1) the Chairman;
(2) the Chief Executive Officer (if a director); or
(3) a person designated by the Board.
The Secretary or, in the case of such person's absence, any person (who
shall be an Assistant Secretary, if an Assistant Secretary has been
appointed and is present) whom the chairman of the meeting shall appoint
shall act as secretary of such meeting and keep the minutes thereof.
SECTION III.6 Directors' Consent in Lieu of Meeting. Unless otherwise
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restricted by the Certificate or these Bylaws, 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, without prior notice and without a vote, if one or more
written consents, setting forth the action so taken, are signed by all the
members of the Board or committee, either before or after the action taken, and
such consent is filed with the minutes of proceedings of the Board or committee.
Action taken by written consent of directors without a meeting is effective when
the last director signs the consent, unless the consent specifies a later
effective date.
SECTION III.7 Action by Means of Conference Telephone or Similar
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Communications Equipment. Any one or more members of the Board or any committee
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thereof, may participate in a meeting of such Board or 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.
SECTION III.8 Committees. The Board, by resolution adopted by a majority
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of the Board, may designate one or more committees, each such committee to
consist of one or more
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directors. Except as expressly limited by the GCL or the Certificate, any such
committee shall have and may exercise such powers as the Board may determine and
specify in the resolution designating such committee. The Board, by resolution
adopted by a majority of the whole Board, also may designate one or more
additional directors as alternate members of any such committee to replace any
absent or disqualified member at any meeting of the committee, and at any time
may change the membership of any committee or amend or rescind the resolution
designating the committee. In the absence or disqualification of a member or
alternate member of a committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not such member or members
constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of any such absent or disqualified member, provided that
the director so appointed meets any qualifications stated in the resolution
designating the committee. Each committee shall keep a record of proceedings and
report the same to the Board to such extent and in such form as the Board may
require. Unless otherwise provided in the resolution designating a committee, a
majority of all of the members of any such committee may select its Chairman,
fix its rules or procedure, fix the time and place of its meetings and specify
what notice of meetings, if any, shall be given.
SECTION III.9 Compensation. The Board shall have the authority to fix
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the compensation of directors, which may include their expenses, if any, of
attendance at each meeting of the Board or any committee.
SECTION III.10 Preferred Stock Directors. Notwithstanding the foregoing,
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whenever the holders of one or more classes or series of preferred stock shall
have the right, voting separately as a class or series, to elect directors, the
election, term of office, filling of vacancies, removal and other features of
such directorships shall be governed by the terms of the resolution or
resolutions adopted by the Board pursuant to ARTICLE FOURTH of the Certificate
applicable thereto, and each director so elected shall not be subject to the
provisions of this ARTICLE III unless otherwise provided therein.
ARTICLE IV
Officers
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SECTION IV.1 Executive Officers. The executive officers of the
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Corporation shall be a Chairman, a Chief Executive Officer, a President, Vice
Presidents, a Secretary and a Chief Financial Officer, and may include such
other officers as the Board may appoint pursuant to Section 3 of this Article
IV. Any two or more offices may be held by the same person.
SECTION IV.2 Authority and Duties. All officers, as between themselves
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and the Corporation, 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 so provided, by the Board.
SECTION IV.3 Other Officers. The Corporation may have such other
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officers, agents and employees as the Board may deem necessary, including one or
more Assistant Secretaries,
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one or more Assistant Chief Financial Officers, and one or more Vice Presidents,
each of whom shall hold office for such period, have such authority, and perform
such duties as the Board, the Chairman, or the Chief Executive Officer may from
time to time determine. The Board may delegate to any principal officer the
power to appoint and define the authority and duties of, or remove, any such
officers, agents or employees.
SECTION IV.4 Term of Office, Resignation and Removal.
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(a) Term of Office. All executive officers shall be elected or
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appointed by the Board and shall hold office for such term as may be
prescribed by the Board. Each executive officer shall hold office until
such person's successor has been elected or appointed and qualified or
until such person's earlier death or resignation or removal in the manner
hereinafter provided. The Board may require any executive officer to give
security for the faithful performance of such person's duties.
(b) Resignation. Any officer may resign at any time by delivering
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written notice to the Board, the Chairman, the Chief Executive Officer or
the Secretary. Such resignation shall take effect at the time specified
therein or, if the time be not specified, at the time notice is given.
Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
(c) Removal. All officers and agents elected or appointed by the
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Board shall be subject to removal at any time by the Board with or without
cause, subject to any agreements to the contrary.
SECTION IV.5 Vacancies. If the office of Chairman, Chief Executive
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Officer, President, Secretary or Chief Financial Officer becomes vacant for any
reason, the Board shall fill such vacancy, and if any other office becomes
vacant, the Board may fill such vacancy. Except as otherwise provided in these
Bylaws, any officer so appointed or elected by the Board shall serve only until
such time as the unexpired term of such person's predecessor shall have expired
and until such person's successor shall have been duly elected and qualified,
unless reelected or reappointed by the Board.
SECTION IV.6 The Chairman. The Chairman of the Board shall perform such
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duties as shall be assigned to such person by the Board from time to time and
shall preside over meetings of the Board and stockholders unless another officer
is appointed or designated by the Board as Chairman of such meeting.
SECTION IV.7 Chief Executive Officer. The Chief Executive Officer shall
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have general charge and supervision of the operation of the business and affairs
of the Corporation. The Chief Executive Officer may sign certificates for shares
of the corporation, deeds, mortgages, bonds, contracts, or other instruments,
except when the signing and execution thereof have been expressly delegated by
the Board or by these Bylaws to some other officer or
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agent of the corporation or are required by law to be otherwise signed or
executed by some other officer or in some other manner. Such person shall from
time to time make such reports of the affairs of the Corporation as the Board
may require and shall perform such other duties as may from time to time be
assigned to such person by the Board or the Chairman.
SECTION IV.8 President. The President shall perform such duties and have
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such other powers as may from time to time be prescribed by these Bylaws, the
Board, the Chairman or the Chief Executive Officer. In the event of the death
of the Chief Executive Officer or such person's inability to act, the President,
if any, shall perform the duties of the Chief Executive Officer, except as may
be limited by resolution of the Board, with all the powers of and subject to all
the restrictions upon the Chief Executive Officer.
SECTION IV.9 Vice President. Any Vice President may sign, with the
--------------
Secretary or Assistant Secretary, certificates for shares of the corporation.
Vice Presidents shall have, to the extent authorized by the Chief Executive
Officer or the Board, the same powers as the Chief Executive Officer to sign
deeds, mortgages, bonds, contracts, or other instruments. Vice Presidents shall
perform such other duties as from time to time may be assigned to them by the
Chief Executive Officer or by the Board.
SECTION IV.10 The Secretary. The Secretary shall, to the extent
-------------
practicable, attend all meetings of the Board and all meetings of the
stockholders and shall record the minutes of all proceedings in a book to be
kept for that purpose. Such person may give, or cause to be given, notice of
all meetings of the stockholders and of the Board, and shall perform such other
duties as may be prescribed by the Board, the Chairman or the Chief Executive
Officer, under whose supervision such person shall act. Such person shall keep
in safe custody the seal of the Corporation and affix the same to any duly
authorized instrument requiring it and, when so affixed, it may be attested by
such person's signature or by the signature of the Chief Financial Officer or,
if appointed, an Assistant Secretary or an Assistant Chief Financial Officer.
The Board may give general authority to any other officer to affix the seal of
the Corporation and to attest such affixing of the seal. Such person shall keep
in safe custody the certificate books and stockholder records, including
registers of the post office address of each stockholder and director, and such
other books and records as the Board 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 such person by the Board, the Chairman or the Chief
Executive Officer.
SECTION IV.11 The Chief Financial Officer. The Chief Financial Officer
---------------------------
shall have the care and custody of the corporate funds and other valuable
effects, including securities, and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board. The
Chief Financial Officer shall disburse the funds of the Corporation as may be
ordered by the Board, taking proper vouchers for such disbursements, and shall
render to the Chairman, Chief Executive Officer and directors, at the regular
meetings of the Board, or whenever they may
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require it, an account of all of such person's transactions as Chief Financial
Officer and of the financial condition of the Corporation, and shall perform all
other duties incident to the office of Chief Financial Officer and such other
duties as from time to time may be assigned to such person by the Board, the
Chairman or the Chief Executive Officer.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, Etc.
----------------------------------------------
SECTION V.1 Execution of Documents. The Board shall designate, by either
----------------------
specific or general resolution, the officers, employees and agents of the
Corporation who shall have the power to execute and deliver deeds, contracts,
mortgages, bonds, debentures, checks, drafts and other orders for the payment of
money and other documents for and in the name of the Corporation, and may
authorize such officers, employees and agents to delegate such power (including
authority to redelegate) by written instrument to other officers, employees or
agents of the Corporation; and, unless so designated or expressly authorized by
these Bylaws, no officer, employee or agent shall have any power or authority to
bind the Corporation by any contract or engagement, to pledge its credit or to
render it liable pecuniarily for any purpose or to any amount.
SECTION V.2 Deposits. All funds of the Corporation not otherwise
--------
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board or Chief Financial Officer, or any other officer of
the Corporation to whom power in this respect shall have been given by the
Board, shall select.
SECTION V.3 Proxies in Respect of Stock or Other Securities of Other
--------------------------------------------------------
Corporations. The Board shall designate the officers of the Corporation who
------------
shall have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation may have as the holder of stock or other
securities in any other corporation, and to vote or consent in respect of such
stock or securities. Such designated officers may instruct the person or
persons so appointed as to the manner of exercising such powers and rights, and
such designated officers may execute or cause to be executed in the name and on
behalf of the Corporation and under its corporate seal or otherwise, such
written proxies, powers of attorney or other instruments as they may deem
necessary or proper in order that the Corporation may exercise its said powers
and rights.
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ARTICLE VI
Shares and Their Transfer; Fixing Record Date
---------------------------------------------
SECTION VI.1 Certificates for Shares. Every owner of stock of the
-----------------------
Corporation shall be entitled to have a certificate certifying the number and
class of shares owned by such person in the Corporation, which shall be in such
form as shall be prescribed by the Board. Each certificate for shares shall be
numbered and issued in consecutive order. Certificates of stock in the
Corporation, if any, shall be signed, either manually or in facsimile by two of
the following officers in the name of the Corporation: the Chairman, or the
Chief Executive Officer or President, or any Vice President and by the Chief
Financial Officer (or an Assistant Chief Financial Officer, if appointed) or the
Secretary (or an Assistant Secretary, if appointed). Where a certificate is
countersigned by a transfer agent, other than the Corporation or an employee of
the Corporation, or by a registrar, the signatures of the Chairman or the Chief
Executive Officer or President or a Vice President and the Chief Financial
Officer or an Assistant Chief Financial Officer or the Secretary or an Assistant
Secretary may be facsimiles. 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, the certificate may be issued by the Corporation with the
same effect as if such officer, transfer agent or registrar were such officer,
transfer agent or registrar at the date of its issue. All certificates shall
include written notice of any restrictions which may be imposed on the
transferability of shares.
SECTION VI.2 Transfer of Stock. Upon surrender to the Corporation or the
-----------------
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate of
stock in place of any certificate therefor issued by the Corporation to the
person entitled thereto, cancel the old certificate and record the transaction
in its stock transfer books.
SECTION VI.3 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
designate such address, corporate notices may be served upon such stockholder by
mail directed to such stockholder at such stockholder's post office address, if
any, as the same appears on the share record books of the Corporation or at such
stockholder's last known post office address.
SECTION VI.4 Replacement. In case of the loss, destruction, mutilation
-----------
or theft of a certificate for any stock of the Corporation, a new certificate of
stock or uncertificated shares in place of any certificate therefor issued by
the Corporation may be issued upon satisfactory proof of such loss, destruction,
mutilation or theft and upon such terms as the Board may prescribe. The Board
may in its discretion require the owner of the lost, destroyed, mutilated or
stolen certificate, or such person's legal representative, to give the
Corporation a bond, in such sum and in such form and with such surety or
sureties as it may direct, to indemnify the
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Corporation against any claim that may be made against it with respect to the
certificate alleged to have been lost, destroyed, mutilated or stolen.
SECTION VI.5 Regulations. The Board may make such rules and regulations
-----------
as it may deem expedient, not inconsistent with these Bylaws, concerning the
issuance, transfer and registration of certificates for stock of the
Corporation.
SECTION VI.6 Fixing Date for Determination of Stockholders of Record. The
-------------------------------------------------------
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted by the Board, in order
that the Corporation may determine which stockholders are entitled to (i) notice
of or to vote at any meeting of stockholders or any adjournment thereof, (ii)
receive payment of any dividend, or (iii) notice for any other purpose. Such
record date shall be not more than sixty (60) days, and in the case of a meeting
of stockholders not less than ten (10) days prior to the date on which the
particular action requiring such determination is to be taken. If no record
date is fixed for the determination of stockholders entitled to notice of or to
vote at a meeting, the record date shall be the day immediately preceding the
date on which notice of the meeting is first given to stockholders. Such a
determination shall apply to any adjournment of the meeting unless the Board
fixes a new record date, which it shall do if the meeting is adjourned to a date
more than one hundred thirty (130) days after the date fixed for the original
meeting. If no record date is set for the determination of stockholders
entitled to receive payment of any stock dividend or distribution (other than
one involving a purchase, redemption, or other acquisition of the corporation's
shares) the record date shall be the date the Board authorizes the stock
dividend or distribution.
ARTICLE VII
Seal
----
The corporate seal shall be in such form as may be approved from time to
time by the Board. The seal may be used by causing it or a facsimile thereof,
to be impressed or affixed or in any other manner reproduced.
ARTICLE VII
Fiscal Year
-----------
Unless otherwise provided in the Certificate, the fiscal year of the
Corporation shall be fixed by resolution of the Board.
ARTICLE IX
Indemnification and Insurance
-----------------------------
SECTION IX.1 Indemnification.
---------------
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(a) Third Party Actions. The Corporation shall indemnify any person
-------------------
who was or is a party or is threatened to be made a party (including,
without limitation as a witness) to any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether formal or informal, including all appeals (other
than an action, suit or proceeding by or in the right of the Corporation)
by reason of the fact that such person is or was a director or officer of
the Corporation (and the Corporation, in the discretion of the Board, may
so indemnify a person by reason of the fact that such person is or was an
employee or agent of the Corporation or is or was serving at the request of
the Corporation in any other capacity for or on behalf of the Corporation),
against reasonable expenses (including attorneys' fees), judgments,
decrees, fines, penalties and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if, in the case of conduct in such person's official capacity
with the corporation, such person acted in good faith and in a manner which
such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and in all other cases, such person acted in
good faith and was at least not opposed to the Corporation's best
interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful, except that
no indemnification shall be made in respect to any claim, issue or matter
as to which such person shall have been finally adjudged to be liable for
(i) negligence or misconduct in the performance of such person's duty to
the Corporation unless and only to the extent that the court in which such
action or suit was brought, or any other court of competent jurisdiction,
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 as such court
shall deem proper, or (ii) violating any of the terms or provisions of
Section 16 of the Securities Exchange Act of 1934, as amended, or any of
the rules or regulations promulgated thereunder. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith or in a
manner which such person 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 such person's conduct
was unlawful. Notwithstanding the foregoing, the Corporation shall be
required to indemnify an officer or director in connection with an action,
suit or proceeding initiated by such person only if such action, suit or
proceeding was authorized by the Board or a committee thereof. No
indemnity shall be provided by the Corporation for expenses that have been
paid directly by an insurance carrier under a policy of directors' and
officers' liability insurance maintained by the Corporation.
(b) Actions By or in the Right of the Corporation. 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,
including all appeals, by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that
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such person is or was a director or officer of the Corporation (and the
Corporation, in the discretion of the Board, may so indemnify a person by
reason of the fact that such person is or was an employee or agent of the
Corporation or is or was serving at the request of the Corporation in any
other capacity for or on behalf of the Corporation), against expenses
(including attorneys' fees) actually and reasonably incurred by such person
in connection with the defense or settlement of such action or suit if, in
the case of conduct in such person's official capacity with the
corporation, such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the Corporation's best
interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful, except that
no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been finally adjudged to be liable for
(i) negligence or misconduct in the performance of such person's duty to
the Corporation unless and only to the extent that the court in which such
action or suit was brought, or any other court of competent jurisdiction,
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 as such court
shall deem proper or (ii) violating any of the terms or provisions of
Section 16 of the Securities Exchange Act of 1934, as amended, or any of
the rules or regulations promulgated thereunder. Notwithstanding the
foregoing, the Corporation shall be required to indemnify an officer or
director in connection with an action, suit or proceeding initiated by such
person only if such action, suit or proceeding was authorized by the Board
or a committee thereof. No indemnity shall be provided by the Corporation
for expenses that have been paid directly by an insurance carrier under a
policy of directors' and officers' liability insurance maintained by the
Corporation.
(c) Indemnify if Successful or Partially Successful. To the extent
-----------------------------------------------
that a present or former 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) of
this Section 9.1, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
If a director, officer, employee or agent of the Corporation is only
partially successful in the defense, investigation, settlement or appeal of
any action, suit or proceeding referred to in subsections (a) and (b) of
this Section 9.1, and as a result is not entitled to indemnification by the
Corporation for the total amount of the expenses (including attorneys'
fees), costs, judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him, the Corporation shall nevertheless
provide indemnification to the extent such person has been partially
successful.
(d) Standard of Conduct. Except in a situation governed by
-------------------
subsection (c) of this Section 9.1, any indemnification under subsections
(a) and (b) of this Section 9.1
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(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 present or former director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of
conduct set forth in subsections (a) and (b) of this Section 9.1. Such
determination shall be made, with respect to a person who is a director or
officer at the time of such determination, (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a
quorum, or (3) 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 (4) by the stockholders, but shares owned by or
voted under the control of directors who are parties to the proceeding may
not be voted on determination. The determination required by clauses (1),
(2) and (3) of this subsection (d) may in either event be made by the
written consent of the majority required by each clause.
(e) Advancement of Expenses. Expenses (including attorneys' fees) of
-----------------------
each officer and directory hereunder indemnified actually and reasonably
incurred in defending any civil, criminal, administrative or investigative
action, suit or proceeding or threat thereof shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of (i) an undertaking by or on behalf of such
person to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized
in the Article and (ii) a written affirmation of director's good faith
belief that such person has performed such person's duty to the
Corporation, upon request by the Corporation and if required under
applicable law. Such expenses (including attorneys' fees) incurred by
former directors and officers or other employees and agents may be so paid
upon the receipt of the aforesaid undertaking and such terms and
conditions, if any, as the Corporation deems appropriate.
(f) Nonexclusivity. The indemnification and advancement of expenses
--------------
provided by, or granted pursuant to, this Article IX 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 such person's official capacity and as to action in another
capacity while holding such office.
SECTION IX.2 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
such person and incurred by such person in any such capacity, or arising out
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of such person's status as such, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of
the GCL.
SECTION IX.3 Definitions.
-----------
(a) For purposes of this Article IX, 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,
and 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 IX with respect to the resulting or
surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
(b) References to "other capacities" shall include serving as a
trustee or agent for any employee benefit plan; references to "other
enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on a person with respect to an
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 services 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 such person 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 IX.
(c) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article IX 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.
(d) The right to indemnification conferred by this Article IX shall
be deemed to be a contract between the Corporation and each person referred
to herein until amended or repealed, but no amendment to or repeal of these
provisions shall apply to or have any effect on the right to
indemnification of any person with respect to any liability or alleged
liability of such person for or with respect to any act or omission of such
person occurring prior to such amendment or repeal.
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(e) A person shall be deemed to have acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the Corporation, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe such person's
conduct was unlawful, if such person's action is based on the records or
books of account of the Corporation or another enterprise, or on
information supplied to such person by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or
records given or reports made to the Corporation or another enterprise by
an independent certified public accountant or by an appraiser or other
expert selected with reasonable care by the Corporation or another
enterprise. The term "another enterprise" as used herein shall mean any
other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise of which such person is or was serving at
the request of the Corporation as a director or executive officer. The
provisions of this subsection shall not be deemed to be exclusive or to
limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 9.1(a) or
Section 9.1(b) of this Article IX, as the case may be.
ARTICLE X
Section 203
-----------
The Corporation shall be governed by Section 203 of the GCL.
ARTICLE XI
Amendment
---------
These Bylaws may be altered, amended or repealed or new Bylaws may be
adopted by the Board, subject to the provisions of these Bylaws and the
Certificate. The fact that the power to amend, alter, repeal or adopt the
Bylaws has been conferred upon the Board shall not divest the stockholders of
the same powers. The stockholders may not adopt any provision contrary to the
provisions of these Bylaws or the Certificate without the affirmative vote of
two-thirds (2/3) of the holders of Voting Stock, voting together as a single
class. Any vote providing for amendment to these Bylaws or the Certificate must
be by written ballot.
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