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BRISTOL HOTEL COMPANY
AMENDED AND RESTATED
BYLAWS
As Adopted and in Effect
as of April 28, 1997
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BRISTOL HOTEL COMPANY
AMENDED AND RESTATED
BYLAWS
TABLE OF CONTENTS
PAGE
STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings...........................................1
2. Annual Meeting.......................................................1
3. Special Meetings.....................................................1
4. Notice of Meetings...................................................2
5. Inspectors...........................................................2
6. Quorum...............................................................2
7. Voting...............................................................2
8. Order of Business....................................................3
DIRECTORS
9. Function.............................................................5
10. Number and Term of Office............................................5
11. Vacancies and New Directorships......................................5
12. Removal..............................................................5
13. Nominations of Directors; Election...................................6
14. Resignation..........................................................7
15. Regular Meetings.....................................................7
16. Special Meetings.....................................................7
17. Quorum...............................................................7
18. Participation in Meetings by Telephone Conference....................8
19. Committees...........................................................8
20. Compensation........................................................10
21. Rules...............................................................10
NOTICES
22. Generally...........................................................10
23. Waivers.............................................................10
OFFICERS
24. Generally...........................................................11
25. Compensation........................................................11
26. Succession..........................................................11
27. Authority and Duties................................................11
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STOCK
28. Certificates........................................................11
29. Classes of Stock....................................................12
30. Transfers...........................................................12
31. Lost, Stolen, or Destroyed Certificates.............................12
32. Record Dates........................................................12
INDEMNIFICATION
33. Damages and Expenses................................................13
34. Insurance, Contracts, and Funding...................................18
GENERAL
35. Fiscal Year.........................................................18
36. Seal................................................................18
37. Reliance upon Books, Reports, and Records...........................18
38. Time Periods........................................................18
39. Amendments..........................................................19
40. Certain Defined Terms...............................................19
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STOCKHOLDERS' MEETINGS
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1. TIME AND PLACE OF MEETINGS. All meetings of the stockholders for the
election of Directors or for any other purpose will be held at such time and
place, within or without the State of Delaware, as may be designated by the
Board or, in the absence of a designation by the Board, the Chairman, or a Vice
Chairman and stated in the notice of meeting. The Board, the Chairman, or a
Vice Chairman may postpone any previously scheduled annual or special meeting of
the stockholders.
2. ANNUAL MEETING. An annual meeting of the stockholders will be held at
such date and time as may be designated from time to time by the Board, at which
meeting the stockholders will elect by a plurality vote the Directors to succeed
those whose terms expire and will transact such other business as may properly
be brought before the meeting in accordance with Bylaw 8.
3. SPECIAL MEETINGS. (a) Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by law or by the Certificate of
Incorporation, may be called only by (i) the Chairman or a Vice Chairman and
(ii) the Secretary within 10 calendar days after receipt of the written request
of a majority of the Whole Board. Any such request by a majority of the Whole
Board must be sent to the Chairman and the Secretary and must state the purpose
or purposes of the proposed meeting. Special meetings of holders of the
outstanding Preferred Stock, if any, may be called in the manner and for the
purposes provided in the applicable Preferred Stock Designation.
(b) Upon the receipt by the Company of a written request executed by the
holders of not less than a majority of the outstanding Voting Stock (a "Meeting
Request"), the Board will (i) call a special meeting of the stockholders for any
lawful purpose (which may not, however, include the election of Directors) and
(ii) fix a record date for the determination of stockholders entitled to notice
of and to vote at such meeting, which record date will not be later than 60
calendar days after the date of receipt by the Company of the Meeting Notice;
PROVIDED, HOWEVER, that no separate special meeting of stockholders requested
pursuant to a Meeting Request will be required to be convened if (A) the Board
calls an annual or special meeting of stockholders to be held not later than 90
calendar days after receipt of such Meeting Request and (B) the purposes of such
annual or special meeting include (among any other matters properly brought
before the meeting) the purposes specified in such Meeting Request.
Notwithstanding any provision of the Certificate of Incorporation or these
Bylaws to the contrary, this Bylaw 3(b) may not be amended or repealed by the
Board, and no provision inconsistent therewith may be adopted by the Board,
without the affirmative vote of the holders of at least a majority of the Common
Stock present or represented by proxy and entitled to vote at any annual or
special meeting of stockholders at which such vote is to be taken.
4. NOTICE OF MEETINGS. Written notice of every meeting of the
stockholders, stating the place, date, and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
will be given not less than 10 nor more than 60 calendar days before the date of
the meeting to each stockholder of record entitled to vote at such meeting,
except as otherwise provided herein or by law. When a meeting is adjourned to
another place, date, or time, written notice need not be given of the adjourned
meeting if the place, date, and time thereof are announced at the meeting at
which the adjournment is taken; PROVIDED, HOWEVER, that 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, written notice of the place, date, and time of
the adjourned meeting must be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been transacted at the
original meeting.
5. INSPECTORS. The Board may appoint one or more inspectors of election
to act as judges of the voting and to determine those entitled to vote at any
meeting of the stockholders, or any adjournment thereof, in advance of such
meeting. The Board 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 presiding officer of the meeting may
appoint one or more substitute inspectors.
6. QUORUM. Except as otherwise provided by law or in a Preferred Stock
Designation, the holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person or represented by proxy, will
constitute a quorum at all meetings of the stockholders for the transaction of
business thereat. If, however, such quorum is not present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present
in person or represented by proxy, will have the power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum is present or represented.
7. VOTING. Except as otherwise provided by law or in a Preferred Stock
Designation, each stockholder will be entitled at every meeting of the
stockholders to one vote for each share of stock having voting power standing in
the name of such stockholder on the books of the Company on the record date for
the meeting and such votes may be cast either in person or by written proxy.
Every proxy must be duly executed and filed with the Secretary. A stockholder
may revoke any proxy that is not irrevocable by attending the meeting and voting
in person or by filing an instrument in writing revoking the proxy or another
duly executed proxy bearing a later date with the Secretary. The vote upon any
question brought before a meeting of the stockholders may be by voice vote,
unless otherwise required by these Bylaws or unless the Chairman or the holders
of a majority of the outstanding shares of all classes of stock entitled to vote
thereon present in person or by proxy at such meeting otherwise determine.
Every vote taken by written ballot will be counted by the inspectors of
election. When a quorum is present at any meeting, the vote of the holders of a
majority of the stock which has voting power present in person or represented by
proxy and which has actually voted will decide any question properly brought
before such meeting, unless the question is one upon which by express provision
of law, the Certificate of Incorporation, a Preferred Stock Designation, or
these Bylaws, a different vote is required, in which case such express provision
will govern and control the decision of such question.
8. ORDER OF BUSINESS. (a) The Chairman, or such other officer of the
Company designated by a majority of the Whole Board, will call meetings of the
stockholders to order and will act as presiding officer thereof. Unless
otherwise determined by the Board prior to the meeting, the presiding officer of
the meeting of the stockholders will also determine the order of business and
have the authority in his or her sole discretion to regulate the conduct of any
such meeting, including without limitation by imposing restrictions on the
persons (other than stockholders of the Company or their duly appointed proxies)
who may attend any such stockholders' meeting, by ascertaining whether any
stockholder or his proxy may be excluded from any meeting of the stockholders
based upon any determination by the presiding officer, in his or her sole
discretion, that any such person has unduly disrupted or is likely to disrupt
the proceedings thereat, and by determining the circumstances in which any
person may make a statement or ask questions at any meeting of the stockholders.
(b) At an annual meeting of the stockholders, only such business will be
conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board in accordance with Bylaw 4, (ii) otherwise properly brought before the
meeting by the presiding officer or by or at the direction of a majority of the
Whole Board, or
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(iii) otherwise properly requested to be brought before the meeting by a
stockholder of the Company in accordance with Bylaw 8(c).
(c) For business to be properly requested by a stockholder to be brought
before an annual meeting, the stockholder must (i) be a stockholder of the
Company of record at the time of the giving of the notice for such annual
meeting provided for in these Bylaws, (ii) be entitled to vote at such meeting,
and (iii) have given timely notice thereof in writing to the Secretary. To be
timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the Company not less than 60 calendar days
prior to the annual meeting; PROVIDED, HOWEVER, that in the event public
announcement of the date of the annual meeting is not made at least 75 calendar
days prior to the date of the annual meeting, notice by the stockholder to be
timely must be so received not later than the close of business on the 10th
calendar day following the day on which public announcement is first made of the
date of the annual meeting. A stockholder's notice to the Secretary must set
forth as to each matter the stockholder proposes to bring before the annual
meeting (A) a description in reasonable detail of the business desired to be
brought before the annual meeting and the reasons for conducting such business
at the annual meeting, (B) the name and address, as they appear on the Company's
books, of the stockholder proposing such business and the beneficial owner, if
any, on whose behalf the proposal is made, (C) the class and number of shares of
the Company that are owned beneficially and of record by the stockholder
proposing such business and by the beneficial owner, if any, on whose behalf the
proposal is made, and (D) any material interest of such stockholder proposing
such business and the beneficial owner, if any, on whose behalf the proposal is
made in such business. Notwithstanding the foregoing provisions of this Bylaw
8(c), a stockholder must also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Bylaw 8(c). For
purposes of this Bylaw 8(c) and Bylaw 13, "public announcement" means disclosure
in a press release reported by the Dow Xxxxx News Service, Associated Press, or
comparable national news service or in a document publicly filed by the Company
with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d)
of the Securities Exchange Act of 1934, as amended, or furnished to
stockholders. Nothing in this Bylaw 8(c) will be deemed to affect any rights of
stockholders to request inclusion of proposals in the Company's proxy statement
pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(d) At a special meeting of stockholders, only such business may be
conducted or considered as is properly brought before the meeting. To be
properly brought before a special meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by or at the direction
of the Chairman or a Vice Chairman or a majority of the Whole Board in
accordance with Bylaw 4 or (ii) otherwise properly brought before the meeting by
the presiding officer or by or at the direction of a majority of the Whole
Board.
(e) The determination of whether any business sought to be brought before
any annual or special meeting of the stockholders is properly brought before
such meeting in accordance with this Bylaw 8 will be made by the presiding
officer of such meeting. If the presiding officer determines that any business
is not properly brought before such meeting, he or she will so declare to the
meeting and any such business will not be conducted or considered.
DIRECTORS
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9. FUNCTION. The business and affairs of the Company will be managed
under the direction of the Board.
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10. NUMBER AND TERM OF OFFICE. (a) Subject to the rights, if any, of any
series of Preferred Stock to elect additional Directors under circumstances
specified in a Preferred Stock Designation and to the minimum and maximum number
of authorized Directors provided in the Certificate of Incorporation, the
authorized number of Directors may be determined from time to time by (i) a vote
of a majority of the Whole Board or (ii) by the affirmative vote of the holders
of at least 80% of the Voting Stock, voting together as a single class. Each
Director will be elected to serve until his or her successor is elected and
qualified.
(b) Notwithstanding anything contained in the Certificate of Incorporation
or these Bylaws to the contrary, the term of any Director who is also an officer
of the Company will terminate automatically, without any further action on the
part of the Board or such Director, upon the termination for any reason of such
Director in his or her capacity as an officer of the Company. Notwithstanding
anything contained in the Certificate of Incorporation or these Bylaws to the
contrary, the affirmative vote of at least 80% of the Directors then in office
will be required to amend, repeal, or adopt any provision inconsistent with this
Bylaw 10(b).
11. VACANCIES AND NEW DIRECTORSHIPS. Subject to the rights, if any, of
the holders of any series of Preferred Stock to elect additional Directors under
circumstances specified in a Preferred Stock Designation, vacancies and newly
created directorships resulting from any increase in the authorized number of
Directors will be filled solely by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum of the Board,
or by a sole remaining Director. Any Director elected in accordance with the
preceding sentence will hold office for the remainder of the full term of the
directorship for which such Director was so elected and until such Director's
successor is elected and qualified. No decrease in the number of Directors
constituting the Board will shorten the term of an incumbent Director.
12. REMOVAL. Subject to the rights, if any, of the holders of any series
of Preferred Stock to elect additional Directors under circumstances specified
in a Preferred Stock Designation, any Director may be removed from office (a) by
the Board with or without cause and upon the vote of a majority of the Whole
Board and (b) by the stockholders only for cause and only in the manner provided
in the Certificate of Incorporation.
13. NOMINATIONS OF DIRECTORS; ELECTION. (a) Subject to the rights, if any,
of the holders of any series of Preferred Stock to elect additional Directors
under circumstances specified in a Preferred Stock Designation, only persons who
are nominated in accordance with the following procedures will be eligible for
election at a meeting of stockholders as Directors of the Company.
(b) Nominations of persons for election as Directors of the Company may be
made only at an annual meeting of stockholders (i) by or at the direction of the
Board or (ii) by any stockholder who is a stockholder of record at the time of
giving of notice provided for in this Bylaw 13, who is entitled to vote for the
election of Directors at such meeting, and who complies with the procedures set
forth in this Bylaw 13. All nominations by stockholders must be made pursuant
to timely notice in proper written form to the Secretary.
(c) To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Company not less than 60
calendar days prior to the annual meeting of stockholders; PROVIDED, HOWEVER,
that in the event that public announcement of the date of the annual meeting is
not made by the Company by inclusion in a report filed with the Securities and
Exchange Commission or furnished to stockholders, or by mail, press release or
otherwise more than 75 calendar days prior to the date of the annual meeting,
notice by the stockholder to be timely must
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be so received not later than the close of business on the 10th calendar day
following the day on which public announcement is first made of the date of the
annual meeting. To be in proper written form, such stockholder's notice must
set forth or include (i) the name and address, as they appear on the Company's
books, of the stockholder giving the notice and of the beneficial owner, if any,
on whose behalf the nomination is made; (ii) a representation that the
stockholder giving the notice is a holder of record of stock of the Company
entitled to vote at such annual meeting and intends to appear in person or by
proxy at the annual meeting to nominate the person or persons specified in the
notice; (iii) the class and number of shares of stock of the Company owned
beneficially and of record by the stockholder giving the notice and by the
beneficial owner, if any, on whose behalf the nomination is made; (iv) a
description of all arrangements or understandings between or among any of (A)
the stockholder giving the notice, (B) the beneficial owner on whose behalf the
notice is given, (C) each nominee, and (D) any other person or persons (naming
such person or persons) pursuant to which the nomination or nominations are to
be made by the stockholder giving the notice; (v) such other information
regarding each nominee proposed by the stockholder giving the notice as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission under the Exchange Act had the nominee
been nominated, or intended to be nominated, by the Board; and (vi) the signed
consent of each nominee to serve as a director of the Company if so elected. At
the request of the Board, any person nominated by the Board for election as a
Director must furnish to the Secretary that information required to be set forth
in a stockholder's notice of nomination which pertains to the nominee. The
presiding officer of any annual meeting will, if the facts warrant, determine
that a nomination was not made in accordance with the procedures prescribed by
this Bylaw 13, and if he or she should so determine, he or she will so declare
to the meeting and the defective nomination will be disregarded.
Notwithstanding the foregoing provisions of this Bylaw 13, a stockholder must
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this Bylaw
13.
14. RESIGNATION. Any Director may resign at any time by giving written
notice of his resignation to the Chairman or the Secretary. Any resignation
will be effective upon actual receipt by any such person or, if later, as of the
date and time specified in such written notice.
15. REGULAR MEETINGS. Regular meetings of the Board may be held
immediately after the annual meeting of the stockholders and at such other time
and place as may from time to time be determined by the Board. Notice of
regular meetings of the Board need not be given.
16. SPECIAL MEETINGS. Special meetings of the Board may be called by the
Chairman or a Vice Chairman on one day's notice to each Director by whom such
notice is not waived, given either personally or by mail, telephone, telegram,
telex, facsimile, or similar medium of communication, and will be called by the
Chairman or the Vice Chairman in like manner and on like notice on the written
request of five or more Directors. Special meetings of the Board may be held at
such time and place either within or without the State of Delaware as is
determined by the Board or specified in the notice of any such meeting.
17. QUORUM. At all meetings of the Board, a majority of the total number
of Directors then in office will constitute a quorum for the transaction of
business. Except for the designation of committees as hereinafter provided and
except for actions required by these Bylaws or the Certificate of Incorporation
to be taken by a majority of the Whole Board, the act of a majority of the
Directors present at any meeting at which there is a quorum will be the act of
the Board. If a quorum is not present at any meeting of the Board, the
Directors present thereat may adjourn the meeting from time
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to time to another place, time, or date, without notice other than announcement
at the meeting, until a quorum is present.
18. WRITTEN ACTION. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes or proceedings
of the Board or committee.
19. PARTICIPATION IN MEETINGS BY TELEPHONE CONFERENCE. Members of the
Board, or any committee designated by the Board, may participate in a meeting of
the Board, or any such committee, by means of telephone conference or similar
means by which all persons participating in the meeting can hear each other, and
such participation in a meeting will constitute presence in person at the
meeting.
20. COMMITTEES. (a) The Board, by resolution passed by a majority of the
Whole Board, will designate an executive committee (the "Executive Committee")
of not less than two and not more than four members of the Board. The Executive
Committee will have and may exercise the powers of the Board, except the power
to amend these Bylaws or the Certificate of Incorporation (except, to the extent
authorized by a resolution of the Board, to fix the designation, preferences,
and other terms of any series of Preferred Stock), adopt an agreement of merger
or consolidation, authorize the issuance of stock, declare a dividend, or
recommend to the stockholders the sale, lease, or exchange of all or
substantially all of the Company's property and assets, a dissolution of the
Company, or a revocation of a dissolution, and except as otherwise provided by
law. Unless otherwise provided in the resolution designating the Executive
Committee, two-thirds of the members of the Executive Committee will constitute
a quorum for the transaction of business, and the act of two-thirds of the
members of the Executive Committee will constitute the act of such committee.
(b) The Board, by resolution passed by a majority of the Whole Board, will
designate a finance committee (the "Finance Committee") of not less than one nor
more than four members of the Board, one of whom will be a Vice Chairman. In
the event of the inability of a Vice Chairman to attend any meeting thereof, the
Chairman may take the place at such meeting of a Vice Chairman. The Finance
Committee will have and may exercise the powers of the Board in the oversight of
the financial affairs of the Company, except the power to amend these Bylaws or
the Certificate of Incorporation (except, to the extent authorized by a
resolution of the Board, to fix the designations, preferences and other terms of
any series of Preferred Stock), adopt an agreement of merger or consolidation,
authorize the issuance of stock, declare a dividend, or recommend to the
stockholders the sale, lease, or exchange of all or substantially all of the
Company's property and assets, a dissolution of the Company, or a revocation of
a dissolution, or rescind or modify any prior action of the Whole Board, and
except as otherwise provided by law. Two-thirds of the members of the Finance
Committee will constitute a quorum for the transaction of business, and the act
of two-thirds of the members of the Finance Committee (which must include the
affirmative vote of a Vice Chairman or, in the absence of a Vice Chairman, the
Chairman) will constitute the act of such committee.
(c) The Board, by resolution passed by a majority of the Board, may
designate one or more additional committees, each such committee to consist of
one or more Directors (which, unless otherwise prescribed by the Board, in each
case must include either the Chairman or the Vice Chairman, or both) and each to
have such lawfully delegable powers and duties as the Board may confer.
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(d) The Executive Committee, the Finance Committee and each other
committee of the Board will serve at the pleasure of the Board or as may be
specified in any resolution from time to time adopted by the Board. The Board
may designate one or more Directors as alternate members of any such committee,
who may replace any absent or disqualified member at any meeting of such
committee. In lieu of such action by the Board, in the absence or
disqualification of any member of a committee of the Board, the members thereof
present at any such meeting of such committee and not disqualified from voting,
whether or not they constitute a quorum, may, by unanimous action, appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member.
(e) Except as otherwise provided in these Bylaws or by law, any committee
of the Board, to the extent provided in Paragraph (a) or (b) of this Bylaw or,
if applicable, in the resolution of the Board designating such committee, will
have and may exercise all the powers and authority of the Board in the direction
of the management of the business and affairs of the Company. Any such
committee designated by the Board will have such name as may be determined from
time to time by resolution adopted by the Board. Except as provided in
Paragraph (a) or (b) of this Bylaw 20 or as otherwise prescribed by the Board, a
majority of the members of any committee of the Board will constitute a quorum
for the transaction of business, and the act of a majority of the members
(which, unless otherwise prescribed by the Board, must include the affirmative
vote of the Chairman or Vice Chairman or, in the absence of the Chairman or Vice
Chairman, the person designated by the Board to take the place of the Chairman
or Vice Chairman) will be the act of such committee. Each committee of the
Board may prescribe its own rules for calling and holding meetings and its
method of procedure, subject to any rules prescribed by the Board, and will keep
a written record of all actions taken by it.
(f) A majority of the members of the Finance Committee, and all of the
members of any committee the primary responsibilities of which include (i)
reviewing the professional services to be provided by the Company's independent
auditors and the independence of such firm from the Company's management,
reviewing financial statements with management or independent auditors, and/or
reviewing internal accounting controls or (ii) reviewing and approving salaries
and other compensation, whether cash or non-cash, and benefits of the Company's
executive officers, will be directors who are not employees of the Company,
United/Xxxxxx Holdings, L.P., Holiday Corporation, Bass America, Inc. or any
affiliate thereof. Notwithstanding any provision of the Certificate of
Incorporation or these Bylaws to the contrary, this Bylaw 20(f) may not be
amended or repealed by the Board, and no provision inconsistent therewith may be
adopted by the Board, without the affirmative vote of the holders of at least a
majority of the Common Stock present or represented by proxy and entitled to
vote at any annual or special meeting of stockholders at which such vote is to
be taken.
21. COMPENSATION. The Board may establish such compensation for, and
reimbursement of the expenses of, Directors for membership on the Board and on
committees of the Board, attendance at meetings of the Board or committees of
the Board, or for other services by Directors to the Company or any of its
majority-owned subsidiaries, as the Board may determine.
22. RULES. The Board may adopt rules and regulations for the conduct of
its meetings and the management of the affairs of the Company.
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NOTICES
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23. GENERALLY. Whenever by law or under the provisions of the Certificate
of Incorporation or these Bylaws, notice is required to be given to any Director
or stockholder, it will not be construed to require personal notice, but such
notice may be given in writing, by mail, addressed to such Director or
stockholder, at his, her, or its address as it appears on the records of the
Company, with postage thereon prepaid, and such notice will be deemed to be
given at the time when the same is deposited in the United States mail. Notice
to Directors may also be given by telephone, telegram, telex, facsimile, or
similar medium of communication or as may otherwise be permitted by these
Bylaws.
24. WAIVERS. Whenever any notice is required to be given by law or under
the provisions of the Certificate of Incorporation or these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time of the event for which notice is to be given,
will be deemed equivalent to such notice. Attendance of a person at a meeting
will constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened.
OFFICERS
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25. GENERALLY. The officers of the Company will be elected by the Board
and will consist of a Chairman, a Chief Executive Officer, a President, a
Secretary, and a Treasurer. The Board may also choose any one or more Vice
Chairmen or Vice Presidents and such other officers as the Board may from time
to time determine. Notwithstanding the foregoing, by specific action the Board
may authorize the Chairman or a Vice Chairman to appoint any person to any
office other than Chairman, Vice Chairman, President, Secretary, or Treasurer.
Any number of offices may be held by the same person. Any of the offices may be
left vacant from time to time as the Board may determine. In the case of the
absence or disability of any officer of the Company or for any other reason
deemed sufficient by a majority of the Board, the Board may delegate the absent
or disabled officer's powers or duties to any other officer or to any Director.
26. COMPENSATION. The compensation of all officers and agents of the
Company who are also Directors of the Company will be fixed by the Board or by a
committee of the Board. The Board may fix, or delegate the power to fix, the
compensation of other officers and agents of the Company to an officer of the
Company.
27. SUCCESSION. The officers of the Company will hold office until their
successors are elected and qualified. Any officer may be removed at any time by
the affirmative vote of a majority of the Whole Board. Any vacancy occurring in
any office of the Company may be filled by the Board as provided in Bylaw 24.
28. AUTHORITY AND DUTIES. Each of the officers of the Company will have
such authority and will perform such duties as are customarily incident to their
respective offices or as may be specified from time to time by the Board or by
the Chairman or the Vice Chairman as provided in Bylaw 24.
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STOCK
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29. CERTIFICATES. Certificates representing shares of stock of the
Company will be in such form as is determined by the Board or an authorized
committee thereof, subject to applicable legal requirements. Each such
certificate will be numbered and its issuance recorded in the books of the
Company, and such certificate will exhibit the holder's name and the number of
shares and will be signed by, or in the name of, the Company by the Chairman or
a Vice Chairman and the Secretary or an Assistant Secretary or the Treasurer or
an Assistant Treasurer, and will also be signed by, or bear the facsimile
signature of, any properly designated transfer agent of the Company. Any or all
of the signatures and the seal of the Company, if any, upon such certificates
may be facsimiles, engraved, or printed. Such certificates may be issued and
delivered notwithstanding that the person whose facsimile signature appears
thereon may have ceased to be such officer at the time certificates are issued
and delivered.
30. CLASSES OF STOCK. The designations, preferences, and relative
participating, optional, or other special rights of the various classes of stock
or series thereof, and the qualifications, limitations, or restrictions thereof,
will be set forth in full or summarized on the face or back of the certificates
which the Company issues to represent its stock or, in lieu thereof, such
certificates will set forth the office of the Company from which the holders of
certificates may obtain a copy of such information.
31. TRANSFERS. Upon surrender to the Company or the transfer agent of the
Company of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment, or authority to transfer, it will be the
duty of the Company to issue, or cause its transfer agent to issue, a new
certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books.
32. LOST, STOLEN, OR DESTROYED CERTIFICATES. The Secretary may direct a
new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Company alleged to have been lost,
stolen, or destroyed upon the making of an affidavit of that fact, satisfactory
to the Secretary, by the person claiming the certificate of stock to be lost,
stolen, or destroyed. As a condition precedent to the issuance of a new
certificate or certificates, the Secretary may require the owners of such lost,
stolen, or destroyed certificate or certificates to give the Company a bond in
such sum and with such surety or sureties as the Secretary may direct as
indemnity against any claims that may be made against the Company with respect
to the certificate alleged to have been lost, stolen, or destroyed or the
issuance of the new certificate.
33. RECORD DATES. (a)In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholder or
any adjournment thereof, the Board may fix a record date, which will not be more
than 60 nor less than 10 calendar days before the date of such meeting. If no
record date is fixed by the Board, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders will be at the
close of business on the calendar day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the calendar next
preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of the stockholders will
apply to any adjournment of the meeting; PROVIDED, HOWEVER, that the Board may
fix a new record date for the adjourned meeting.
(b) In order that the Company may determine the stockholders entitled to
receive payment of any dividend or other distribution or allotment of any rights
or the stockholders entitled to exercise
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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 a record date, which
record date will not be more than 60 calendar days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose will be at the close of business on the calendar day on which the Board
adopts the resolution relating thereto.
(c) The Company will be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes, and will
not be bound to recognize any equitable or other claim to, or interest in, such
share on the part of any other person, whether or not the Company has notice
thereof, except as expressly provided by applicable law.
INDEMNIFICATION
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34. DAMAGES AND EXPENSES. (a) Without limiting the generality or effect of
Article Ninth of the Certificate of Incorporation, the Company will to the
fullest extent permitted by applicable law as then in effect indemnify any
person (an "Indemnitee") who is or was involved in any manner (including without
limitation as a party or a witness) or is threatened to be made so involved in
any threatened, pending, or completed investigation, claim, action, suit, or
proceeding, whether civil, criminal, administrative, or investigative (including
without limitation any action, suit, or proceeding by or in the right of the
Company to procure a judgment in its favor) (a "Proceeding") by reason of the
fact that such person is or was or had agreed to be a Director, officer,
employee, or agent of the Company, or is or was serving at the request of the
Board or an officer of the Company as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other entity, whether
or not for profit (including the heirs, executors, administrators, or estate of
such person), or anything done or not done by such person in any such capacity,
against all expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement actually and reasonably incurred by such person in connection
with such Proceeding. Such indemnification will be a contract right and will
include the right to receive payment in advance of any expenses incurred by an
Indemnitee in connection with such Proceeding, consistent with the provisions of
applicable law as then in effect.
(b) The right of indemnification provided in this Bylaw 34 will not be
exclusive of any other rights to which any person seeking indemnification may
otherwise be entitled, and will be applicable to Proceedings commenced or
continuing after the adoption of this Bylaw 34, whether arising from acts or
omissions occurring before or after such adoption.
(c) In furtherance, but not in limitation of the foregoing provisions, the
following procedures, presumptions, and remedies will apply with respect to
advancement of expenses and the right to indemnification under this Bylaw 34:
(i) All reasonable expenses incurred by or on behalf of an Indemnitee
in connection with any Proceeding will be advanced to the Indemnitee by the
Company within 30 calendar days after the receipt by the Company of a
statement or statements from the Indemnitee requesting such advance or
advances from time to time, whether prior to or after final disposition of
such Proceeding. Such statement or statements will reasonably evidence the
expenses incurred by the Indemnitee and, if and to the extent required by
law at the time of such advance, will include or be accompanied by an
undertaking by or on behalf of the Indemnitee to repay such amounts
advanced as to which it may ultimately be determined that the Indemnitee is
not entitled. If such an undertaking is required by law at the time of an
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advance, no security will be required for such undertaking and such
undertaking will be accepted without reference to the recipient's financial
ability to make repayment.
(ii) To obtain indemnification under this Bylaw 34, the Indemnitee
will submit to the Secretary a written request, including such
documentation supporting the claim as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what
extent the Indemnitee is entitled to indemnification (the "Supporting
Documentation"). The determination of the Indemnitee's entitlement to
indemnification will be made not less than 60 calendar days after receipt
by the Company of the written request for indemnification together with the
Supporting Documentation. The Secretary will promptly upon receipt of such
a request for indemnification advise the Board in writing that the
Indemnitee has requested indemnification. The Indemnitee's entitlement to
indemnification under this Bylaw 34 will be determined in one of the
following ways: (A) by a majority vote of the Disinterested Directors (as
hereinafter defined), if they constitute a quorum of the Board, or, in the
case of an Indemnitee that is not a present or former officer of the
Company, by any committee of the Board or committee of officers or agents
of the Company designated for such purpose by a majority of the Board of
Directors; (B) by a written opinion of Independent Counsel (as hereinafter
defined) if (1) a Change of Control (as hereinafter defined) has occurred
and the Indemnitee so requests or (2) in the case of an Indemnitee that is
a present or former officer of the Company, a quorum of the Board
consisting of Disinterested Directors is not obtainable or, even if
obtainable, a majority of such Disinterested Directors so directs; (C) by
the stockholders (but only if a majority of the Disinterested Directors, if
they constitute a quorum of the Board, presents the issue of entitlement to
indemnification to the stockholders for their determination); or (D) as
provided in subparagraph (iii) below. In the event the determination of
entitlement to indemnification is to be made by Independent Counsel
pursuant to clause (B) above, a majority of the Disinterested Directors
will select the Independent Counsel, but only an Independent Counsel to
which the Indemnitee does not reasonably object; PROVIDED, HOWEVER, that if
a Change of Control has occurred, the Indemnitee will select such
Independent Counsel, but only an Independent Counsel to which the Board
does not reasonably object.
(iii) Except as otherwise expressly provided in this Bylaw 34, the
Indemnitee will be presumed to be entitled to indemnification under this
Bylaw 34 upon submission of a request for indemnification together with the
Supporting Documentation in accordance with subparagraph (c)(ii) above, and
thereafter the Company will have the burden of proof to overcome that
presumption in reaching a contrary determination. In any event, if the
person or persons empowered under subparagraph (c)(ii) to determine
entitlement to indemnification has not been appointed or has not made a
determination within 60 calendar days after receipt by the Company of the
request therefor together with the Supporting Documentation, the Indemnitee
will be deemed to be entitled to indemnification and the Indemnitee will be
entitled to such indemnification unless (A) the Indemnitee misrepresented
or failed to disclose a material fact in making the request for
indemnification or in the Supporting Documentation or (B) such
indemnification is prohibited by law. The termination of any Proceeding
described in paragraph (a) of this Bylaw 34, or of any claim, issue, or
matter therein, by judgment, order, settlement, or conviction, or upon a
plea of NOLO CONTENDERE or its equivalent, will not, of itself, adversely
affect the right of the Indemnitee to indemnification or create a
presumption that the Indemnitee did not act in good faith and in a manner
which the Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company or, with respect to any criminal Proceeding,
that the Indemnitee had reasonable cause to believe that his or her conduct
was unlawful.
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(iv) (A) In the event that a determination is made pursuant to
subparagraph (c)(ii) that the Indemnitee is not entitled to indemnification
under this Bylaw 34, (1) the Indemnitee will be entitled to seek an
adjudication of his entitlement to such indemnification either, at the
Indemnitee's sole option, in (x) an appropriate court of the State of
Delaware or any other court of competent jurisdiction or (y) an arbitration
to be conducted by a single arbitrator pursuant to the rules of the
American Arbitration Association, (2) any such judicial proceeding or
arbitration will be DE NOVO and the Indemnitee will not be prejudiced by
reason of such adverse determination, and (3) in any such judicial
proceeding or arbitration the Company will have the burden of proving that
the Indemnitee is not entitled to indemnification under this Bylaw 34.
(B) If a determination is made or deemed to have been made, pursuant
to subparagraph (c)(ii) or (iii) of this Bylaw 34 that the Indemnitee is
entitled to indemnification, the Company will be obligated to pay the
amounts constituting such indemnification within five business days after
such determination has been made or deemed to have been made and will be
conclusively bound by such determination unless (1) the Indemnitee
misrepresented or failed to disclose a material fact in making the request
for indemnification or in the Supporting Documentation or (2) such
indemnification is prohibited by law. In the event that advancement of
expenses is not timely made pursuant to subparagraph (c)(i) of this Bylaw
34 or payment of indemnification is not made within five business days
after a determination of entitlement to indemnification has been made or
deemed to have been made pursuant to subparagraph (c)(ii) or (iii) of this
Bylaw 34, the Indemnitee will be entitled to seek judicial enforcement of
the Company's obligation to pay to the Indemnitee such advancement of
expenses or indemnification. Notwithstanding the foregoing, the Company
may bring an action, in an appropriate court in the State of Delaware or
any other court of competent jurisdiction, contesting the right of the
Indemnitee to receive indemnification hereunder due to the occurrence of
any event described in subclause (1) or (2) of this clause (A) (a
"Disqualifying Event"); PROVIDED, HOWEVER, that in any such action the
Company will have the burden of proving the occurrence of such
Disqualifying Event.
(B) The Company will be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to the provisions of this
subparagraph (c)(iv) that the procedures and presumptions of this Bylaw 34
are not valid, binding, and enforceable and will stipulate in any such
court or before any such arbitrator that the Company is bound by all the
provisions of this Bylaw 34.
(C) In the event that the Indemnitee, pursuant to the provisions of
this subparagraph (c)(iv), seeks a judicial adjudication of, or an award in
arbitration to, enforce his or her rights under, or to recover damages for
breach of, this Bylaw 34, the Indemnitee will be entitled to recover from
the Company, and will be indemnified by the Company against, any expenses
actually and reasonably incurred by the Indemnitee if the Indemnitee
prevails in such judicial adjudication or arbitration. If it is determined
in such judicial adjudication or arbitration that the Indemnitee is
entitled to receive part but not all of the indemnification or advancement
of expenses sought, the expenses incurred by the Indemnitee in connection
with such judicial adjudication or arbitration will be prorated
accordingly.
(v) For purposes of this paragraph (c):
(A) "Change in Control" means the occurrence of any of the
following events:
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(1) The Company is merged, consolidated, or reorganized
into or with another corporation or other legal entity, and as a
result of such merger, consolidation, or reorganization less than
a majority of the combined voting power of the then-outstanding
securities of such corporation or entity immediately after such
transaction are held in the aggregate by the holders of the
then-outstanding securities entitled to vote generally in the
election of directors ("Voting Stock") of the Company immediately
prior to such transaction;
(2) The Company sells or otherwise transfers all or
substantially all of its assets to another corporation or other
legal entity and, as a result of such sale or transfer, less than
a majority of the combined voting power of the then-outstanding
securities of such other corporation or entity immediately after
such sale or transfer is held in the aggregate by the holders of
Voting Stock of the Company immediately prior to such sale or
transfer;
(3) If, during any period of two consecutive years,
individuals who at the beginning of any such period constitute
the Directors cease for any reason to constitute at least a
majority thereof; PROVIDED, HOWEVER, that for purposes of this
clause (3) each Director who is first elected, or first nominated
for election by the Company's stockholders by a vote of at least
two-thirds of the Directors (or a committee of the Directors),
then still in office who were Directors at the beginning of any
such period will be deemed to have been a Director at the
beginning of such period.
(B) "Disinterested Director" means a Director of the Company who is
not or was not a party to the Proceeding in respect of which
indemnification is sought by the Indemnitee.
(C) "Independent Counsel" means a law firm or a member of a law firm
that neither presently is, nor in the past five years has been, retained to
represent (1) the Company or the Indemnitee in any matter material to
either such party or (2) any other party to the Proceeding giving rise to a
claim for indemnification under this Bylaw 34. Notwithstanding the
foregoing, the term "Independent Counsel" will not include any person who,
under the applicable standards of professional conduct then prevailing
under the law of the State of Delaware, would be precluded from
representing either the Company or the Indemnitee in an action to determine
the Indemnitee's rights under this Bylaw 34.
(d) If any provision or provisions of this Bylaw 34 are held to be
invalid, illegal, or unenforceable for any reason whatsoever: (i) the validity,
legality, and enforceability of the remaining provisions of this Bylaw 34
(including without limitation all portions of any paragraph of this Bylaw 34
containing any such provision held to be invalid, illegal, or unenforceable,
that are not themselves invalid, illegal, or unenforceable) will not in any way
be affected or impaired thereby and (ii) to the fullest extent possible, the
provisions of this Bylaw 34 (including without limitation all portions of any
paragraph of this Bylaw 34 containing any such provision held to be invalid,
illegal, or unenforceable, that are not themselves invalid, illegal, or
unenforceable) will be construed so as to give effect to the intent manifested
by the provision held invalid, illegal, or unenforceable.
35. INSURANCE, CONTRACTS, AND FUNDING. The Company may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines, and amounts paid in settlement or incurred by any Indemnitee
in connection with any Proceeding referred to in
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Bylaw 34 or otherwise, to the fullest extent permitted by applicable law as then
in effect. The Company may enter into contracts with any person entitled to
indemnification under Bylaw 34 or otherwise, and may create a trust fund, grant
a security interest, or use other means (including without limitation a letter
of credit) to ensure the payment of such amounts as may be necessary to effect
indemnification as provided in Bylaw 34. Notwithstanding anything to the
contrary contained in Bylaw 34, in the event that the Company enters into a
contract with any person providing for indemnification of such person, the
provisions of such contract will exclusively govern the Company's obligations in
respect of indemnification for or advancement of fees or disbursements of such
person's counsel or any other professional engaged by such person.
GENERAL
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36. FISCAL YEAR. The fiscal year of the Company will be fixed from time
to time by the Board.
37. SEAL. The Board may adopt a corporate seal and use the same by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
38. RELIANCE UPON BOOKS, REPORTS, AND RECORDS. Each Director, each member
of a committee designated by the Board, and each officer of the Company will, in
the performance of his or her duties, be fully protected in relying in good
faith upon the records of the Company and upon such information, opinions,
reports, or statements presented to the Company by any of the Company's officers
or employees, or committees of the Board, or by any other person or entity as to
matters the Director, committee member, or officer believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Company.
39. TIME PERIODS. In applying any provision of these Bylaws that requires
that an act be done or not be done a specified number of days prior to an event
or that an act be done during a period of a specified number of days prior to an
event, calendar days will be used unless otherwise specified, the day of the
doing of the act will be excluded and the day of the event will be included.
40. AMENDMENTS. Except as otherwise provided by law or by the Certificate
of Incorporation or these Bylaws, these Bylaws or any of them may be amended in
any respect or repealed at any time, either (a) at any meeting of stockholders,
provided that any amendment or supplement proposed to be acted upon at any such
meeting has been described or referred to in the notice of such meeting, or
(b) at any meeting of the Board, provided that no amendment adopted by the Board
may vary or conflict with any amendment adopted by the stockholders.
41. CERTAIN DEFINED TERMS. Terms used herein with initial capital letters
that are defined in the Certificate of Incorporation are used herein as so
defined.
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