Subject to the Shareholders' Agreement, dated as of
January 29, 1999, among the Corporation and the
shareholders named therein.
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NEXTEL PARTNERS, INC.
BYLAWS
Adopted as of July 8, 1998
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TABLE OF CONTENTS
PAGE
----
ARTICLE 1 STOCKHOLDERS......................................................1
1.1 Annual Meeting................................................1
1.2 Special Meetings..............................................1
1.3 Notice of Meetings; Waiver....................................1
1.4 Quorum........................................................2
1.5 Voting........................................................2
1.6 Voting by Ballot..............................................2
1.7 Adjournment...................................................2
1.8 Proxies.......................................................3
1.9 Organization; Procedure.......................................3
1.10 Consent of Stockholders in
Lieu of Meeting .............................................3
ARTICLE 2 BOARD OF DIRECTORS................................................3
2.1 General Powers................................................3
2.2 Number and Term of Office.....................................4
2.3 Election of Directors.........................................4
2.4 Annual and Regular Meetings...................................4
2.5 Special Meetings; Notice......................................4
2.6 Quorum; Voting................................................5
2.7 Adjournment...................................................5
2.8 Action Without a Meeting......................................5
2.9 Regulations; Manner of Acting.................................5
2.10 Action by Telephonic Communications..........................5
2.11 Resignation..................................................5
2.12 Removal of Directors.........................................6
2.13 Vacancies and Newly
Created Directorships .......................................6
2.14 Compensation.................................................6
2.15 Reliance on Accounts and Reports, etc........................6
ARTICLE 3 EXECUTIVE COMMITTEE AND OTHER COMMITTEES..........................6
3.1 How Constituted...............................................6
3.2 Powers........................................................7
3.3 Quorum; Voting................................................7
3.4 Action without a Meeting......................................7
3.5 Regulations; Manner of Acting.................................8
3.6 Action by Telephonic Communications...........................8
3.7 Resignation...................................................8
3.8 Removal.......................................................8
3.9 Vacancies.....................................................8
ARTICLE 4 OFFICERS..........................................................8
4.1 Titles........................................................8
i
4.2 Election......................................................8
4.3 Salaries......................................................9
4.4 Removal and Resignation; Vacancies............................9
4.5 Authority and Duties..........................................9
4.6 The Chairman of the Board.....................................9
4.7 The President................................................10
4.8 The Vice Presidents..........................................10
4.9 The Secretary................................................10
4.10 The Treasurer...............................................11
4.11 Additional Officers.........................................12
4.12 Security....................................................12
ARTICLE 5 CAPITAL STOCK....................................................12
5.1 Certificates of Stock,
Uncertificated Shares .......................................12
5.2 Signatures; Facsimile........................................13
5.3 Lost, Stolen or Destroyed Certificates.......................13
5.4 Transfer of Stock............................................13
5.5 Record Date..................................................13
5.6 Registered Stockholders......................................14
5.7 Transfer Agent and Registrar.................................14
ARTICLE 6 OFFICES..........................................................15
6.1 Registered Office............................................15
6.2 Other Offices................................................15
ARTICLE 7 GENERAL PROVISIONS...............................................15
7.1 Dividends....................................................15
7.2 Reserves.....................................................15
7.3 Execution of Instruments.....................................15
7.4 Corporate Indebtedness.......................................16
7.5 Deposits.....................................................16
7.6 Checks.......................................................16
7.7 Sale, Transfer, etc. of Securities...........................16
7.8 Voting as Stockholder........................................16
7.9 Fiscal Year..................................................17
7.10 Seal........................................................17
7.11 Books and Records...........................................17
ARTICLE 8 AMENDMENT OF BYLAWS..............................................17
8.1 Amendment....................................................17
ARTICLE 9 CONSTRUCTION....................................................17
9.1 Construction................................................17
ii
BYLAWS
NEXTEL PARTNERS, INC.
ARTICLE 1
STOCKHOLDERS
------------
1.1 Annual Meeting. The annual meeting of the stock holders of the
Corporation for the election of directors and for the transaction of such other
business as may properly come before such meeting shall be held at such place,
either within or without the State of Delaware, at 9:00 A.M. on the second
Wednesday of each April of each year (or, if such day is a legal holiday, then
on the next succeeding business day), or at such other date and hour, as may be
fixed from time to time by resolution of the Board of Directors and set forth
in the notice or waiver of notice of the meeting.
1.2 Special Meetings. Special meetings of the stock holders
may be called at any time by the President (or, in the event of his absence or
disability, by any Vice President), or by the Board of Directors. A special
meeting shall be called by the President (or, in the event of his absence or
disability, by any Vice President), or by the Secretary, immediately upon
receipt of a written request therefor by stockholders holding in the aggregate
not less than 50% of the outstanding shares of the Corporation at the time
entitled to vote at any meeting of the stockholders. If such officers or the
Board of Directors shall fail to call such meeting within 20 days after receipt
of such request, any stock holder executing such request may call such meeting.
Any such special meeting of the stockholders shall be held at such place,
within or without the State of Delaware, as shall be specified in the notice or
waiver of notice thereof.
1.3 Notice of Meetings; Waiver. The Secretary or any Assistant
Secretary shall cause written notice of the place, date and hour of each
meeting of the stockholders, and, in the case of a special meeting, the purpose
or purposes for which such meeting is called, to be given personally or by
mail, not less than ten nor more than 60 days before the date of the meeting,
to each stock holder of record entitled to vote at such meeting. If such notice
is mailed, it shall be deemed to have been given to a stockholder when
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the record of stockholders of the
Corporation, or, if he shall have filed with the Secretary a written request
that notices to him be mailed to some other address, then directed to him at
such other address. Such further notice shall be given as may be required by
law.
Whenever notice is required to be given to stockholders hereunder, a
written waiver, signed by a stockholder, whether before or after the time
stated therein, shall be deemed equivalent to notice. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in a written waiver of notice. The attendance of
any stockholder at a meeting of stockholders shall constitute a waiver of
notice of such meeting, except when the stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
1.4 Quorum. Except as otherwise required by law or by the Certificate
of Incorporation, the presence in person or by proxy of the holders of record
of a majority of the shares entitled to vote at a meeting of stockholders shall
constitute a quorum for the transaction of business at such meeting.
1.5 Voting. If, pursuant to Section 5.5 of these By laws, a record
date has been fixed, every holder of record of shares entitled to vote at a
meeting of stockholders shall be entitled to one vote for each share
outstanding in his name on the books of the Corporation at the close of
business on such record date. If no record date has been fixed, then every
holder of record of shares entitled to vote at a meeting of stockholders shall
be entitled to one vote for each share of stock standing in his name on the
books of the Corporation at the close of business on the day next preceding the
day on which notice of the meeting is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. Except as otherwise required by law, by the Certificate of Incorporation,
or by the Shareholders' Agreement, dated as of January 29, 1999, by and among
the Corporation and the shareholders identified therein (the "Shareholders'
Agreement"), the vote of a majority of the shares represented in person or by
proxy at any meeting at which a quorum is present shall be sufficient for the
transaction of any business at such meeting.
1.6 Voting by Ballot. No vote of the stockholders need be taken by
written ballot or conducted by inspectors of election, unless otherwise
required by law. Any vote which need not be taken by ballot may be conducted in
any manner approved by the meeting.
1.7 Adjournment. If a quorum is not present at any meeting of the
stockholders, the stockholders present in person or by proxy shall have the
power to adjourn any such meeting from time to time until a quorum is present.
Notice of any adjourned meeting of the stockholders of the Corporation need not
be given if the
place, date and hour thereof are announced at the meeting at which the
adjournment is taken, provided, however, that if the adjourn ment is for more
than 30 days, or if after the adjournment a new record date for the adjourned
meeting is fixed pursuant to Section 5.5 of these Bylaws, a notice of the
adjourned meeting, conforming to the requirements of Section 1.3 hereof, shall
be given to each stockholder of record entitled to vote at such meeting. At any
adjourned meeting at which a quorum is present, any business may be transacted
that might have been transacted on the original date of the meeting.
1.8 Proxies. Any stockholder entitled to vote at any meeting of the
stockholders or to express consent to or dissent from corporate action without
a meeting may, by a written instru ment signed by such stockholder or his
attorney-in-fact, authorize another person or persons to vote at any such
meeting and express such consent or dissent for him by proxy. No such proxy
shall be voted or acted upon after the expiration of three years from the date
of such proxy, unless such proxy provides for a longer period. Every proxy
shall be revocable at the pleasure of the stockholder executing it, except in
those cases where applicable law provides that a proxy shall be irrevocable. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by filing another duly executed proxy bearing a later date with the
Secretary.
1.9 Organization; Procedure. At every meeting of stock holders the
presiding officer shall be the Chairman of the Board or, in the event of his
absence or disability, the President or, in the event of his absence or
disability, a presiding officer chosen by a majority of the stockholders
present in person or by proxy. The Secretary, or in the event of his absence or
disability, the Assistant Secretary, if any, or if there be no Assistant
Secretary, in the absence of the Secretary, an appointee of the presiding
officer, shall act as Secretary of the meeting. The order of business and all
other matters of procedure at every meeting of stockholders may be determined
by such presiding officer.
1.10 Consent of Stockholders in Lieu of Meeting. To the fullest extent
permitted by law, whenever the vote of the stock holders at a meeting thereof
is required or permitted to be taken for or in connection with any corporate
action, such action may be taken without a meeting, without prior notice and
without a vote of stockholders, if the holders of outstanding stock having not
less than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon were
present and voted shall consent in
3
writing to such corporate action being taken. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not so consented in writing.
ARTICLE 2
BOARD OF DIRECTORS
------------------
2.1 General Powers. Except as may otherwise be provided by law, by the
Certificate of Incorporation or by these Bylaws, the property, affairs and
business of the Corporation shall be managed by or under the direction of the
Board of Directors and the Board of Directors may exercise all the powers of
the Corporation.
2.2 Number and Term of Office. Except as otherwise provided in the
Shareholders' Agreement, the number of Directors constituting the entire Board
of Directors shall be five, which number may be modified from time to time by
resolution of the Board of Directors, but in no event shall the number of
Directors be less than five. Each Director (whenever elected) shall hold office
until his successor has been duly elected and qualified, or until his earlier
death, resignation or removal.
2.3 Election of Directors. Except as otherwise provided in Sections
2.12 and 2.13 of these Bylaws and in the Shareholders' Agreement, the Directors
shall be elected at each annual meeting of the stockholders. If the annual
meeting for the election of Directors is not held on the date designated
therefor, the Directors shall cause the meeting to be held as soon thereafter
as convenient. At each meeting of the stockholders for the election of
Directors, provided a quorum is present and subject to the provisions of the
Shareholders' Agreement, the Directors shall be elected by a plurality of the
votes validly cast in such election.
2.4 Annual and Regular Meetings. The annual meeting of the Board of
Directors for the purpose of electing officers and for the transaction of such
other business as may come before the meeting shall be held as soon as possible
following adjournment of the annual meeting of the stockholders at the place of
such annual meeting of the stockholders. Notice of such annual meeting of the
Board of Directors need not be given. The Board of Directors from time to time
may by resolution provide for the holding of regular meetings and fix the place
(which may be within or without the State of Delaware) and the date and hour of
such meetings. Notice of regular meetings need not be given, provided, however,
that if the Board of Directors shall fix or change the time or place of any
regular meeting, notice of such action shall be mailed promptly, or
4
sent by telegram, facsimile or cable, to each Director who shall not have been
present at the meeting at which such action was taken, addressed to him at his
usual place of business, or shall be delivered to him personally. Notice of
such action need not be given to any Director who attends the first regular
meeting after such action is taken without protesting the lack of notice to
him, prior to or at the commencement of such meeting, or to any Director who
submits a signed waiver of notice, whether before or after such meeting.
2.5 Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the President or, in the event of
his absence or disability, by any Vice President, at such place (within or
without the State of Delaware), date and hour as may be specified in the
respective notices or waivers of notice of such meetings. Special meetings of
the Board of Directors may be called on 24 hours' notice, if notice is given to
each Director personally or by telephone or facsimile, or on five days' notice,
if notice is mailed to each Director, addressed to him at his usual place of
business. Notice of any special meeting need not be given to any Director who
attends such meeting without protesting the lack of notice to him, prior to or
at the commencement of such meeting, or to any Director who submits a signed
waiver of notice, whether before or after such meeting, and any business may be
transacted thereat.
2.6 Quorum; Voting. At all meetings of the Board of Directors, the
presence of a majority of the total authorized number of Directors shall
constitute a quorum for the transaction of business. Except as otherwise
required by law, the vote of a majority of the Directors present at any meeting
at which a quorum is present shall be the act of the Board of Directors. The
provisions of this Section 2.6 shall be subject to the Shareholders' Agreement
for so long as the Shareholders' Agreement remains in effect.
2.7 Adjournment. A majority of the Directors present, whether or not a
quorum is present, may adjourn any meeting of the Board of Directors to another
time or place. No notice need be given of any adjourned meeting unless the time
and place of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of Section 2.5
shall be given to each Director.
2.8 Action Without a Meeting. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board of Directors
5
consent thereto in writing, and such writing or writings are filed with the
minutes of proceedings of the Board of Directors.
2.9 Regulations; Manner of Acting. To the extent consistent with
applicable law, the Certificate of Incorporation and these Bylaws, the Board of
Directors may adopt such rules and regulations for the conduct of meetings of
the Board of Directors and for the management of the property, affairs and
business of the Corporation as the Board of Directors may deem appropriate. The
Directors shall act only as a Board, and the individual Directors shall have no
power as such.
2.10 Action by Telephonic Communications. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or similar communi cations equipment by means of which all
persons participating in the meeting can hear each other, and participation in
a meeting pursuant to this provision shall constitute presence in person at
such meeting.
2.11 Resignation. Any Director may resign at any time by delivering a
written notice of resignation, signed by such Director, to the President or the
Secretary. Unless otherwise spe cified therein, such resignation shall take
effect upon delivery.
2.12 Removal of Directors. Any Director may be removed at any time,
either for or without cause, upon the affirmative vote of the holders of a
majority of the outstanding shares of stock of the Corporation entitled to vote
for the election of such Director, cast at a special meeting of stockholders
called for that purpose. Any vacancy in the Board of Directors caused by any
such removal may be filled at such meeting by the stockholders entitled to vote
for the election of the Director so removed. If such stockholders do not fill
such vacancy at such meeting (or in the written instrument effecting such
removal, if such removal was effected by consent without a meeting), such
vacancy may be filled in the manner provided in Section 2.13 of these Bylaws.
The provisions of this Section 2.12 shall be subject to the Shareholders'
Agreement for so long as the Shareholders' Agreement remains in effect.
2.13 Vacancies and Newly Created Directorships. If any vacancies shall
occur in the Board of Directors, by reason of death, resignation, removal or
otherwise, or if the authorized number of Directors shall be increased, the
Directors then in office shall continue to act, and such vacancies and newly
created directorships may be filled by a majority of the Directors then in
office, although less than a quorum. A Director elected to fill a vacancy or a
newly created directorship shall hold office until his
6
successor has been elected and qualified or until his earlier death,
resignation or removal. Any such vacancy or newly created directorship may also
be filled at any time by vote of the stockholders.
2.14 Compensation. The amount, if any, which each Director shall be
entitled to receive as compensation for his services as such shall be fixed
from time to time by resolution of the Board of Directors.
2.15 Reliance on Accounts and Reports, etc. A member of the Board of
Directors, or a member of any Committee designated by the Board of Directors,
shall, in the performance of his duties, be fully protected in relying in good
faith upon the records of the Corporation and upon such information, opinions,
reports or state ments presented to the Corporation by any of the Corporation's
officers or employees, or Committees of the Board of Directors, or by any other
person as to matters the member reasonably 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 Corporation, including without
limitation independent certified public accountants and appraisers.
7
ARTICLE 3
EXECUTIVE COMMITTEE AND OTHER COMMITTEES
----------------------------------------
3.1 How Constituted. The Board of Directors may desig nate one or more
Committees, including an Executive Committee, each such Committee to consist of
such number of Directors as from time to time may be fixed by the Board of
Directors. The Board of Directors may designate one or more directors as
alternate members of any such Committee, who may replace any absent or
disqualified member or members at any meeting of such Committee. In addition,
unless the Board of Directors has so designated an alternate member of such
Committee, in the absence or disqualification of a member of such Committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Thereafter, members (and alternate
members, if any) of each such Committee may be designated at the annual meeting
of the Board of Directors. Any such Committee may be abolished or redesignated
from time to time by the Board of Directors. Each member (and each alternate
member) of any such Committee (whether designated at an annual meeting of the
Board of Directors or to fill a vacancy or otherwise) shall hold office until
his successor shall have been designated or until he shall cease to be a
Director, or until his earlier death, resignation or removal.
3.2 Powers. During the intervals between the meetings of the Board of
Directors, the Executive Committee, if created by the Board of Directors, and
except as otherwise provided in this section, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
property, affairs and business of the Corporation, including the power to
declare dividends. Each such other Committee shall have and may exercise such
powers of the Board of Directors as may be provided by resolution of the Board,
provided, that neither the Executive Committee nor any such other Committee
shall have the power or authority to (i) approve or adopt, or recommend to the
stockholders, any action or matter expressly required by the General
Corporation Law to be submitted to stockholders for approval or (ii) adopt,
amend or repeal any of these Bylaws. The Executive Committee shall have, and
any such other Committee may be granted by the Board of Directors, power to
authorize the seal of the Corporation to be affixed to any or all papers which
may require it.
3.3 Quorum; Voting. Except as may be otherwise provided in the
resolution creating such Committee, at all meetings of any
8
Committee the presence of members (or alternate members) constitut ing a
majority of the total authorized membership of such Committee shall constitute
a quorum for the transaction of business. The act of a majority of the members
present at any meeting at which a quorum is present shall be the act of such
Committee.
3.4 Action without a Meeting. Any action required or permitted to be
taken at any meeting of any such Committee may be taken without a meeting, if
all members of such Committee shall consent to such action in writing and such
writing or writings are filed with the minutes of the proceedings of the
Committee.
3.5 Regulations; Manner of Acting. Each such Committee may fix its own
rules of procedure and may meet at such place (within or without the State of
Delaware), at such time and upon such notice, if any, as it shall determine
from time to time. Each such Committee shall keep minutes of its proceedings
and shall report such proceedings to the Board of Directors at the meeting of
the Board of Directors next following any such proceeding. The members of any
such Committee shall act only as a Committee, and the individual members of
such Committee shall have no power as such.
3.6 Action by Telephonic Communications. Members of any Committee
designated by the Board of Directors may participate in a meeting of such
Committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this provision shall constitute
presence in person at such meeting.
3.7 Resignation. Any member (and any alternate member) of any
Committee may resign at any time by delivering a written notice of resignation,
signed by such member, to the Chairman or the President. Unless otherwise
specified therein, such resig nation shall take effect upon delivery.
3.8 Removal. Any member (any alternate member) of any Committee may be
removed at any time, with or without cause, by resolution adopted by a majority
of the whole Board of Directors.
3.9 Vacancies. If any vacancy shall occur in any Committee, by reason
of death, resignation, removal or otherwise, the remaining members (and any
alternate members) shall continue to act, and any such vacancy may be filled by
the Board of Directors or the remaining members of the Committee as provided in
Section 3.1 hereof.
9
ARTICLE 4
OFFICERS
--------
4.1 Titles. The officers of the Corporation shall be chosen by the
Board of Directors and shall be a President, one or more Vice Presidents, a
Secretary and a Treasurer. The Board of Directors also may elect one or more
Assistant Secretaries and Assistant Treasurers in such numbers as the Board of
Directors may determine, and may also elect a Chairman of the Board. Any number
of offices may be held by the same person. No officer need be a Director of the
Corporation.
4.2 Election. Unless otherwise determined by the Board of Directors,
the officers of the Corporation shall be elected by the Board of Directors at
the annual meeting of the Board of Directors, and shall be elected to hold
office until the next succeeding annual meeting of the Board of Directors. In
the event of the failure to elect officers at such annual meeting, officers may
be elected at any regular or special meeting of the Board of Directors. Each
officer shall hold office until his successor has been elected and qualified,
or until his earlier death, resignation or removal.
4.3 Salaries. The salaries of all officers of the Corporation shall be
fixed by the Board of Directors.
4.4 Removal and Resignation; Vacancies. Any officer may be removed
with or without cause at any time by the Board of Directors. Any officer may
resign at any time by delivering a written notice of resignation, signed by
such officer, to the Board of Directors or the President. Unless otherwise
specified therein, such resignation shall take effect upon delivery. Any
vacancy occurring in any office of the Corporation by death, resignation,
removal or otherwise, shall be filled by the Board of Directors.
4.5 Authority and Duties. The officers of the Corpor ation shall have
such authority and shall exercise such powers and perform such duties as may be
specified in these Bylaws, except that in any event each officer shall exercise
such powers and perform such duties as may be required by law.
4.6 The Chairman of the Board. The Chairman of the Board shall preside
at all meetings of the stockholders and directors, shall be the chief executive
officer of the Corporation and, together with the President and subject to the
directions of the Board of Directors, shall have general control and
supervision of the business and operations of the Corporation and shall see
that
10
all orders and resolutions of the Board of Directors are carried into effect.
He shall manage and administer the Corpor ation's business and affairs and
shall also perform all duties and exercise all powers usually pertaining to the
office of a Chairman of the Board of a corporation. He shall have the authority
to sign, in the name and on behalf of the Corporation, checks, orders,
contracts, leases, notes, drafts and other documents and instruments in
connection with the business of the Corporation and, together with the
Secretary or an Assistant Secretary, conveyances of real estate and other
documents and instruments to which the seal of the Corporation is affixed. He
shall have the authority to cause the employment or appointment of such
employees and agents of the Corporation as the conduct of the business of the
Corporation may require, to fix their compensation, and to remove or suspend
any employee or agent elected or appointed by the Chairman of the Board, the
President or the Board of Directors. The Chairman of the Board shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
4.7 The President. The President shall be the chief operating officer
of the Corporation and, together with the Chair man of the Board and subject to
the directions of the Board of Directors, shall have general control and
supervision of the policies and operations of the Corporation and shall see
that all orders and resolutions of the Board of Directors are carried into
effect. In the absence of the Chairman of the Board, the President shall
preside at all meetings of the stockholders and directors. He shall manage and
administer the Corporation's business and affairs and shall also perform all
duties and exercise all powers usually pertaining to the office of a chief
operating officer of a corporation. He shall have the authority to sign, in the
name and on behalf of the Corporation, checks, orders, contracts, leases,
notes, drafts and other documents and instruments in connection with the
business of the Corporation and, together with the Secre tary or an Assistant
Secretary, conveyances of real estate and other documents and instruments to
which the seal of the Corpor ation is affixed. He shall have the authority to
cause the employ ment or appointment of such employees and agents of the
Corporation as the conduct of the business of the Corporation may require, to
fix their compensation, and to remove or suspend any employee or agent elected
or appointed by the Chairman of the Board, the President or the Board of
Directors. The President shall perform such other duties and have such other
powers as the Chairman of the Board or the Board of Directors may from time to
time prescribe.
4.8 The Vice Presidents. Each Vice President shall per form such
duties and exercise such powers as may be assigned to him from time to time by
the President. In the absence of the Presi-
11
dent, the duties of the President shall be performed and his powers may be
exercised by such Vice President as shall be designated by the President, or
failing such designation, such duties shall be performed and such powers may be
exercised by each Vice President in the order of their election to that office;
subject in any case to review and superseding action by the President.
4.9 The Secretary. The Secretary shall have the following powers and
duties:
(a) He shall keep or cause to be kept a record of all the proceedings of the
meetings of the stockholders and of the Board of Directors in books provided
for that purpose.
(b) He shall cause all notices to be duly given in accordance with the
provisions of these Bylaws and as required by law.
(c) Whenever any Committee shall be appointed pursuant to a resolution of the
Board of Directors, he shall furnish a copy of such resolution to the members
of such Committee.
(d) He shall be the custodian of the records and of the seal of the
Corporation and cause such seal (or a facsimile thereof) to be affixed to all
certificates representing shares of the Corporation prior to the issuance
thereof and to all instruments the execution of which on behalf of the
Corporation under its seal shall have been duly authorized in accordance with
these Bylaws, and when so affixed he may attest to same.
(e) He shall properly maintain and file all books, reports, statements,
certificates and all other documents and records required by law, the
Certificate of Incorporation or these Bylaws.
(f) He shall have charge of the stock books and ledgers of the Corporation and
shall cause the stock and transfer books to be kept in such manner as to show
at any time the number of shares of stock of the Corporation of each class
issued and outstanding, the names (alphabetically arranged) and the addresses
of the holders of record of such shares, the number of shares held by each
holder and the date as of which each became such holder of record.
(g) He shall sign (unless the Treasurer, an Assistant Treasurer or Assistant
Secretary shall have signed) certificates representing shares of the
Corporation the issuance of which shall have been authorized by the Board of
Directors.
(h) He shall perform, in general, all duties incident to the office of
secretary and such other duties as may be specified in
12
these Bylaws or as may be assigned to him from time to time by the Board of
Directors or the President.
4.10 The Treasurer. The Treasurer shall be the chief financial officer
of the corporation and shall have the following powers and duties:
(a) He shall have charge and supervision over and be responsible for the
moneys, securities, receipts and disbursements of the Corporation, and shall
keep or cause to be kept full and accurate records of all receipts of the
Corporation.
(b) He shall cause the moneys and other valuable effects of the Corporation to
be deposited in the name and to the credit of the Corporation in such banks or
trust companies or with such bankers or other depositaries as shall be selected
in accordance with Section 8.5 of these Bylaws.
(c) He shall cause moneys of the Corporation to be disbursed by checks or
drafts (signed as provided in Section 8.6 of these Bylaws) upon the authorized
depositories of the Corporation and cause to be taken and preserved proper
vouchers for all moneys disbursed.
(d) He shall render to the Board of Directors or the President, whenever
requested, a statement of the financial con dition of the Corporation and of
all his transactions as Treasurer, and render a full financial report at the
annual meeting of the stockholders, if called upon to do so.
(e) He shall be empowered from time to time to require from all officers or
agents of the Corporation reports or state ments giving such information as he
may desire with respect to any and all financial transactions of the
Corporation.
(f) He may sign (unless an Assistant Treasurer or the Secretary or an
Assistant Secretary shall have signed) certificates representing stock of the
Corporation the issuance of which shall have been authorized by the Board of
Directors.
(g) He shall perform, in general, all duties incident to the office of
treasurer and such other duties as may be specified in these Bylaws or as may
be assigned to him from time to time by the Board of Directors, or the
President.
4.11 Additional Officers. The Board of Directors may appoint such
other officers and agents as it my deem appropriate, and such other officers
and agents shall hold their offices for
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such terms and shall exercise such powers and perform such duties as may be
determined from time to time by the Board of Directors. The Board of Directors
from time to time may delegate to any officer or agent the power to appoint
subordinate officers or agents and to prescribe their respective rights, terms
of office, authorities and duties. Any such officer or agent may remove any
such subordinate officer or agent appointed by him, with or without cause.
4.12 Security. The Board of Directors may direct that the Corporation
secure the fidelity of any or all of its officers or agents by bond or
otherwise.
ARTICLE 5
CAPITAL STOCK
-------------
5.1 Certificates of Stock, Uncertificated Shares. The shares of the
Corporation shall be represented by certificates, provided that the Board of
Directors may provide by resolution that some or all of any or all classes or
series of the stock of the Corporation shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until each
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board of Directors, every holder of stock in the
Corporation represented by certificates and upon request every holder of
uncertificated shares shall be entitled to have a certificate signed by, or in
the name of the Corporation, by the Chairman of the Board, President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, representing the number of shares registered in
certificate form. Such certificate shall be in such form as the Board of
Directors may determine, to the extent consistent with applicable law, the
Certificate of Incorporation and these Bylaws.
5.2 Signatures; Facsimile. All of such signatures on the certificate
may be a facsimile, engraved or printed, to the extent permitted by law. In
case any officer, transfer agent or registrar who has signed, or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
5.3 Lost, Stolen or Destroyed Certificates. The Secretary of the
Corporation may cause a new certificate of stock or uncertificated shares in
place of any certificate therefor issued
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by the Corporation, alleged to have been lost, stolen or destroyed, upon
delivery to the Secretary of an affidavit of the owner or owners of such
certificate, or his or their legal repre sentative setting forth such
allegation. The Secretary may require the owner or owners of such lost, stolen
or destroyed certificate, or his or their legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be
made against it on account of the alleged loss, theft or destruction of any
such certificate or the issuance of any such new certificate or uncertificated
shares.
5.4 Transfer of Stock. Upon surrender to the Corpor ation or the
transfer agent of the Corporation of a certificate for shares, duly endorsed or
accompanied by appropriate evidence of succession, assignment or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Within a reasonable time after the transfer of uncer tificated stock, the
Corporation shall send to the registered owner thereof a written notice
containing the information required to be set forth or stated on certificates
pursuant to Section 151, 156, 202(a) or 218(a) of the General Corporation Law.
Subject to the provisions of the Certificate of Incorporation, the
Shareholders' Agreement and these Bylaws, the Board of Directors may prescribe
such additional rules and regulations as it may deem appropriate relating to
the issue, transfer and registration of shares of the Corporation.
5.5 Record Date. In order to determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or entitled to express consent to corporate action in writing without a
meeting, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix, in advance, a record date, which
shall not be more than 60 nor less than ten days before the date of such
meeting, nor more than 60 days prior to any other action. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, provided, however,
that the Board of Directors may fix a new record date for the adjourned
meeting.
5.6 Registered Stockholders. Prior to due surrender of a certificate
for registration of transfer, the Corporation may treat the registered owner as
the person exclusively entitled to receive dividends and other distributions,
to vote, to receive notice and otherwise to exercise all the rights and powers
of the owner of the
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shares represented by such certificate, and the Corporation shall not be bound
to recognize any equitable or legal claim to or interest in such shares on the
part of any other person, whether or not the Corporation shall have notice of
such claim or interest. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the Corporation for
transfer or uncertificated shares are requested to be transferred, both the
transferor and transferee request the Corporation to do so.
5.7 Transfer Agent and Registrar. The Board of Directors may appoint one or more
transfer agents and registrars, and may require all certificates representing
shares to bear the signature of any such transfer agents or registrars.
ARTICLE 6
OFFICES
-------
6.1 Registered Office. The registered office of the Corporation in the State of
Delaware shall be located at 0 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000,
and the Corporation's registered agent shall be National Registered Agents, Inc.
6.2 Other Offices. The Corporation may maintain offices or places of business at
such other locations within or without the State of Delaware as the Board of
Directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE 7
GENERAL PROVISIONS
------------------
7.1 Dividends. Subject to any applicable provisions of law and the Certificate
of Incorporation, dividends upon the shares of the Corporation may be declared
by the Board of Directors at any regular or special meeting of the Board of
Directors and any such dividend may be paid in cash, property, or shares of the
Corporation.
7.2 Reserves. There may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, thinks proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation or for such other purpose as the Board of Directors
shall think conducive to the interest of the
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Corporation, and the Board of Directors may similarly modify or abolish any
such reserve.
7.3 Execution of Instruments. The President, any Vice President, the Secretary
or the Treasurer may enter into any contract or execute and deliver any
instrument in the name and on behalf of the Corporation. The Board of Directors
or the President may authorize any other officer or agent to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation. Any such authorization may be general or limited to specific
contracts or instruments.
7.4 Corporate Indebtedness. No loan shall be contracted on behalf of the
Corporation, and no evidence of indebtedness shall be issued in its name, unless
authorized by the Board of Directors. Such authorization may be general or
confined to specific instances. Loans so authorized may be effected at any time
for the Corporation from any bank, trust company or other institution, or from
any firm, corporation or individual. All bonds, debentures, notes and other
obligations or evidences of indebtedness of the Corporation issued for such
loans shall be made, executed and delivered as the Board of Directors shall
authorize. When so authorized by the Board of Directors, any part of or all the
properties, including contract rights, assets, business or good will of the
Corporation, whether then owned or thereafter acquired, may be mortgaged,
pledged, hypothecated or conveyed or assigned in trust as security for the
payment of such bonds, debentures, notes and other obligations or evidences of
indebtedness of the Corporation, and of any interest thereon, by instruments
executed and delivered in the name of the Corporation.
7.5 Deposits. Any funds of the Corporation may be deposited from time to time in
such banks, trust companies or other depositaries as may be determined by the
Board of Directors or the President, or by such officers or agents as may be
authorized by the Board of Directors or the President to make such
determination.
7.6 Checks. All checks or demands for money and notes of the Corporation shall
be signed by such officer or officers or such agent or agents of the
Corporation, and in such manner, as the Board of Directors or the President from
time to time may determine.
7.7 Sale, Transfer, etc. of Securities. To the extent authorized by the Board of
Directors or by the President, any Vice President, the Secretary or the
Treasurer or any other officers designated by the Board of Directors or the
President may sell, transfer, endorse, and assign any shares of stock, bonds or
other
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securities owned by or held in the name of the Corporation, and may make,
execute and deliver in the name of the Corporation, under its corporate seal,
any instruments that may be appropriate to effect any such sale, transfer,
endorsement or assignment.
7.8 Voting as Stockholder. Unless otherwise determined by resolution of the
Board of Directors, the President or any Vice President shall have full power
and authority on behalf of the Corporation to attend any meeting of stockholders
of any corporation in which the Corporation may hold stock, and to act, vote (or
execute proxies to vote) and exercise in person or by proxy all other rights,
powers and privileges incident to the ownership of such stock. Such officers
acting on behalf of the Corporation shall have full power and authority to
execute any instrument expressing consent to or dissent from any action of any
such corporation without a meeting. The Board of Directors may by resolution
from time to time confer such power and authority upon any other person or
persons.
7.9 Fiscal Year. The fiscal year of the Corporation shall commence on the first
day of January of each year (except for the Corporation's first fiscal year
which shall commence on the date of incorporation) and shall end in each case on
December 31.
7.10 Seal. The seal of the Corporation shall be circular in form and shall
contain the name of the Corporation, the year of its incorporation and the words
"Corporate Seal" and "Delaware". The form of such seal shall be subject to
alteration by the Board of Directors. The seal may be used by causing it or a
facsimile thereof to be impressed, affixed or reproduced, or may be used in any
other lawful manner.
7.11 Books and Records. Except to the extent otherwise required by law, the
books and records of the Corporation shall be kept at such place or places
within or without the State of Delaware as may be determined from time to time
by the Board of Directors.
ARTICLE 8
AMENDMENT OF BYLAWS
-------------------
8.1 Amendment. These Bylaws may be amended, altered or repealed:
(a) by resolution adopted by a majority of the Board of Directors at any
special or regular meeting of the Board if, in the case of such special meeting
only, notice of such amendment, alteration or
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repeal is contained in the notice or waiver of notice of such meeting; or
(b) at any regular or special meeting of the stock holders if, in the case of
such special meeting only, notice of such amendment, alteration or repeal is
contained in the notice or waiver of notice of such meeting.
ARTICLE 9
CONSTRUCTION
------------
ARTICLE 9.1 Construction. In the event of any conflict between the provisions
of these Bylaws as in effect from time to time and the provisions of the
Certificate of Incorporation as in effect from time to time, the provisions of
the Certificate of Incorporation shall be controlling.
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