Exhibit
3.2
BYLAWS
OF
TELECOMM
SALES NETWORK, INC.
ARTICLE
I
Offices
Section
1. Principal
Office. The
principal office of the Corporation shall be located at 8621 Gleneagles Drive,
Raleigh, North Carolina 27613, or such place as the Board of Directors may
specify from time to time.
Section
2. Registered
Office. The
regis-tered office of the Corporation shall be located at 1209 Orange Street
Wilmington, Delaware 19801, New Castle County, or at such other place as the
Board of Directors shall determine from time to time.
Section
3. Other
Offices. The
Corporation may have such other offic-es at such other places, either within or
without the State of Delaware, as the Board of Directors may from time to time
deter-mine, or as the affairs of the Corporation may require.
ARTICLE
II
Meetings
of Stockholders
Section
1. Place
of Meeting.
Meetings of the stockholders of the Corporation shall be held at the such place,
either within or without the State of Delaware, as may be designated from time
to time by the Board of Directors, or, if not so designated, then at the
principal office of the Corporation required to be maintained pursuant to
Article I, Section 2 hereof. The Board of Directors may, in its sole discretion
and subject to such guidelines and procedures as the Board of Directors may
adopt for such meeting, permit stockholders and proxy holders not present at
such meeting to: (i) participate in such meeting of stockholders; and (ii) be
deemed present in person and vote at such meeting of stockholders, provided
that: (A) the Corporation shall implement reasonable measures to verify that
each person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxy holder; (B) the Corporation shall
implement reasonable measures to provide stockholders and proxy holders a
reasonable opportunity to participate in the meeting and to vote on matters
submitted to the stockholders; and (C) if any stockholder or proxy holder votes
or takes other action at the meeting by means of remote communication, the
Corporation shall maintain a record of such vote or other action.
Section
2. Annual
Meetings. The
annual meeting of the stockholders shall be held during the month of March, at
such time and place as the Board of Directors shall determine, at which time the
stockholders shall elect a Board of Directors and transact such other business
as may be properly brought before the meeting. Notwithstanding the foregoing,
the Board of Directors may cause the annual meeting of stockholders to be held
on such other date in any year as they shall determine to be in the best
interest of the Corporation, and any business transacted at said meeting shall
have the same validity as if transacted on the date designated
herein.
Section
3. Special
Meetings. Special
meetings of the stockholders, for any purpose or purposes, unless otherwise
prescribed by statute or the Certificate of Incorporation, may be called by the
Chairman of the Board, Chief Executive Officer or President. The President or
Secretary shall call a special meeting when: (i) requested in writing by any two
or more of the directors, or one director if only one director is then in
office; or (ii) requested in writing by stockholders owning a majority of the
shares entitled to vote. Such written request shall state the purpose or
purposes of the proposed meeting.
Section
4. Notice. Except
as otherwise required by statute or the Certificate of Incorporation, written
notice of each meeting of the stockholders, whether annual or special, shall be
served, either personally, by mail or private carrier, or by facsimile,
electronic mail or other electronic means, upon each stockholder of record
entitled to vote at such meeting, not less than ten (10) nor more than sixty
(60) days before the meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail addressed to the stockholder
at his address as it appears on the records of the Corporation, with postage
thereon prepaid. Notice shall be sent by facsimile, electronic mail or other
electronic means only to stockholders who have agreed to receive notice by
electronic means and who have not revoked such agreement. Notice of any meeting
of stockholders shall state the place, date and hour of the meeting, and, in the
case of a special meeting, the purpose or purposes for which the meeting is
called. The notice shall also state the means of remote communication, if any,
by which stockholders and proxy holders may be deemed present in person and vote
at such meeting. Notice of any meeting of stockholders shall not be required to
be given to any stockholder who, in person or by his authorized attorney, either
before or after such meeting, shall waive such notice in writing. Attendance of
a stockholder at a meeting, either in person or by proxy, shall itself
constitute waiver of notice and waiver of any and all objections to the place
and time of the meeting and manner in which it has been called or convened,
except when a stockholder attends a meeting solely for the purpose of stating,
at the beginning of the meeting, any such objections to the transaction of
business. Notice of the time and place of any adjourned meeting need not be
given otherwise than by the announcement at the meeting at which adjournment is
taken, unless the adjournment is for more than thirty (30) days or after the
adjournment a new record date is set.
Section
5. Proxies. A
stockholder may attend, represent, and vote his shares at any meeting in person,
or be represented and have his shares voted for by a proxy which such
stockholder has duly executed in writing. No proxy shall be valid after three
(3) years from the date of its execution unless a long-er period is expressly
provided in the proxy. Each proxy shall be revocable unless otherwise expressly
provided in the proxy or unless otherwise made irrevocable by law.
Section
6. Quorum. The
holders of a majority of the stock issued, outstanding and entitled to vote,
present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders and shall be required for the transaction of
business, except as otherwise provided by law, by the Certificate of
Incorporation, or by these Bylaws. When a quorum is present at the original
meeting, any business which might have been transacted at the original meeting
may be transacted at an adjourned meeting, even when a quorum is not present at
the adjourned meeting. The stockholders at a meeting at which a quorum is
initially present may continue to do business until adjournment, notwithstanding
the withdrawal of sufficient stockholders to leave less than a quorum. If,
however, such majority shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote at such meeting, present in
person or by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting unless the
adjournment is for more than thirty (30) days or after the adjournment a new
record date is set, until the required amount of voting stock shall be present.
At such adjourned meeting at which a quorum shall be present in person or by
proxy, any business may be transacted that might have been transacted at the
meeting originally called.
2
Section
7. Voting
of Shares. Each
outstanding share of voting capital stock of the Corporation shall be entitled
to one vote on each matter submitted to a vote at a meeting of the stockholders,
except as otherwise provided in the Certificate of Incorporation. The vote by
the holders of a majority of the shares voted on any matter at a meeting of
stockholders at which a quorum is present shall be the act of the stockholders
on that matter, unless the vote of a greater number is required by law, by the
Certificate of Incorporation, or by these Bylaws; provided, however, that
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors. Voting on all matters shall be by voice vote or show of
hands unless the holders of ten percent (10%) of the shares represented at the
meeting shall, prior to voting on any matter, demand a written ballot on that
particular matter. Shares of
its own stock owned by the Corporation, directly or indirectly, through a
subsidiary or otherwise, shall not be voted and shall not be counted in
determining the number of shares entitled to vote; except that shares held in a
fiduciary capacity may be voted and shall be counted except to the extent
provided by law.
Section
8. Action
Without Meeting.
(a) Any
action required or permitted to be taken at any annual or special meeting of the
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent or consents in writing, setting forth the action so taken,
are signed by 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.
(b) Every
written consent shall bear the date of signature of each stockholder who signs
the consent, and no consent shall be effective to take the corporate action
referred to in such consent unless, within sixty (60) days of the earliest dated
consent delivered to the Corporation in the manner required in these Bylaws,
written consents signed by a sufficient number of stockholders to take action
are delivered to the Corporation by delivery to its registered office in the
State of Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation’s registered office
shall be by hand or by certified or registered mail, return receipt
requested.
(c) A
telegram, electronic mail or other electronic transmission consenting to action
to be taken and transmitted by a stockholder or proxy holder, or by a person or
persons authorized to act for a stockholder or proxy holder, shall be deemed to
be written, signed and dated, as required by Section 228 of the General
Corporation Law of Delaware and by these Bylaws, provided that any such
telegram, electronic mail or other electronic transmission sets forth or is
delivered with information from which the Corporation can determine: (i) that
the telegram, electronic mail or other electronic transmission was transmitted
by the stockholder, proxy holder or person authorized to act for the stockholder
or proxy holder; and (ii) the date on which such stockholder, proxy holder or
authorized person(s) transmitted such telegram, electronic mail or other
electronic transmission. The date on which such telegram, electronic mail or
other electronic transmission is transmitted shall be deemed to be the date on
which such consent was signed. Unless otherwise provided by resolution of the
Board of Directors, no consent given by telegram, electronic mail or other
electronic transmission shall be deemed to have been delivered until such
consent is reproduced in paper form and until such paper form shall be delivered
to the Corporation by delivery to its registered office, its principal place of
business or an officer or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation’s registered office shall be made by and or by certified or
registered mail, return receipt requested.
3
(d) 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
consented in writing. If the action which is consented to is such as would have
required the filing of a certificate under any section of the General
Corporation Law of Delaware if such action had been voted on by the stockholders
at a meeting thereof, then the certificate filed under such section shall state,
in lieu of any statement required by such section concerning any vote of
stockholders, that written notice and written consent have been given as
provided in Section 228 of the General Corporation Law of Delaware.
Section
9. Fixing
of Record Date. For the
purposes of determining stockholders entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, the Board of Directors may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting. If no record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
day next preceding the day on which notice 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. 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. For the purpose of determining the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of Directors
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which date shall not be more than ten (10) days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. If no
record date has been fixed by the Board of Directors, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by
law, shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation in the
manner provided by law. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the Board of Directors adopts the resolution taking such prior action. For
the purpose of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors may
fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. If no record date is fixed, the
record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the
resolution relating thereto.
4
Section
10. List
of Stockholders. The
Secretary shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete alphabetical list of the stockholders entitled to vote
at the meeting, showing the address of each stockholder and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section
11. Inspectors
of Election.
(a)
Appointment
of Inspectors of Election. In
advance of any meeting of stockholders, the Board of Directors may appoint any
persons, other than nominees for office, as inspectors of election to act at
such meeting or any adjournment thereof. If inspectors of election are not so
appointed, the chairman of any such meeting may appoint inspectors of election
at the meeting. The number of inspectors shall be either one (1) or three (3).
In case any person appointed as inspector fails to appear or fails or refuses to
act, the vacancy may be filled by appointment by the Board of Directors in
advance of the meeting or at the meeting by the person acting as
chairman.
(b)
Duties
of Inspectors. The
inspectors of elections shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting, the existence of a
quorum, the authenticity, validity and effect of proxies, receive votes, ballots
or consents, hear and determine all challenges and questions in any way arising
in connection with the right to vote, count and tabulate all votes or consents,
determine the results and do such acts as may be proper to conduct the election
or vote with fairness to all stockholders. The inspectors of election shall
perform their duties impartially, in good faith, to the best of their ability
and as expeditiously as possible.
(c)
Vote
of Inspectors. If
there are three (3) inspectors of election the decision, act or certificate of a
majority shall be effective in all respects as the decision, act or certificate
of all.
(d)
Report
of Inspectors. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge or question or matter determined by them and shall
execute a certificate of any fact found by them. Any report or certificate made
by them shall be prima facie evidence of the facts stated therein.
5
ARTICLE
III
Board
of Directors
Section
1. General
Powers. The
business and affairs of the Corporation shall be managed by the Board of
Directors, except as otherwise provided by law, by the Certificate of
Incor-poration of the Corporation or by these Bylaws.
Section
2. Number,
Term and Qualifications. The
number of directors of the Corporation shall be not more than five (5) but not
less than (1), the actual number to be fixed by the stockholders or the Board of
Directors from time to time. Each director shall hold office until his death,
resignation, retirement, removal, dis-qualification, or his successor is elected
and qualifies. Directors need not be resi-dents of the State of Delaware or
stockholders of the Corporation.
Section
3. Election
of Directors. Except
as provided in Section 6, below, the directors shall be elected at the annual
meeting of stockholders (or by written consent in lieu of such meeting) and such
directors, as provided in Section 7 of Article II, shall be elected by a
plurality of the votes of the shares present or represented by proxy at the
meeting (or executing the written consent in lieu of such meeting) and entitled
to vote in the election of directors.
Section
4. Removal. At a
special meeting of the stockholders called for the purpose and in the manner
provided in these Bylaws, subject to any limitations imposed by law or the
Certificate of Incorporation, the Board of Directors, or any individual
director, may be removed from office, with or without cause, and a new director
or directors elected by a vote of stockholders holding a majority of the
outstanding shares entitled to vote at an election of directors.
Section
5. Resignation. Any
director of the Corporation may resign at any time by giving written notice to
the President or the Secretary of the Corporation. The resignation of any
director shall take effect upon receipt of such notice or at such later time as
shall be specified in such notice. The acceptance of such resignation shall not
be necessary to make it effective.
Section
6. Vacancies. Any
vacancy in the Corporation’s Board of Directors, including, without limitation,
any vacancy created by an increase in the authorized number of directors or
resulting from the stockholders’ failure to elect the full authorized number of
directors, may be filled by the vote of a majority of the remaining directors
then in office, though less than a quorum. If the vacant office was held by a
director elected by a voting group, only the remaining director or directors
elected by that voting group or the holders of shares of that voting group are
entitled to fill the vacancy. A director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office. The stockholders
may elect a director at any time to fill a vacancy not filled by the
directors.
Section
7. Compensation. The
Board of Directors may cause the Corporation to compensate directors for their
services as directors and may provide for payment by the Corporation of all
expenses incurred by directors in attending regular and special meetings of the
Board.
6
ARTICLE
IV
Meetings
of Directors
Section
1. Annual
and Regular Meetings. A
regular meeting of the Board of Directors shall be held immediately after, and
at the same place as, the annual meeting of stockholders. In addition, the Board
of Directors may provide, by resolution, for the holding of additional regular
meetings.
Section
2. Special
Meetings. Special
meetings of the Board of Directors may be called by or at the request of the
Chairman of the Board, the President or any two or more directors, or one
director if only one director is then in office. Such meetings may be held at
the time and place designated in the notice of the meeting.
Section
3. Notice
of Meetings.
(a) Regular
meetings of the Board of Directors may be held without notice. Written notice of
the time and place of all special meetings of the Board of Directors shall be
given at least twenty-four (24) hours before the meeting and not more than
thirty (30) days prior to the meeting; such notice need not specify the purpose
for which the meeting is called. Notice of any meeting may be waived in writing
at any time before or after the meeting and will be waived by any director by
attendance at such meeting, except when the director attends the meeting for the
express purposes of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called of
convened. Notice of an adjourned meeting need not be given if the time and place
are fixed at the meeting adjourning and if the period of adjournment does not
exceed ten (10) days in any one adjournment.
(b) The
transaction of all business at any meeting of the Board of Directors, however
called or noticed, or wherever held, shall be as valid as though had at a
meeting duly held after regular call and notice, if a quorum be present and if,
either before or after the meeting, each of the directors not present shall sign
a written waiver of notice, or a consent to holding such meeting, or an approval
of the minutes thereof. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in any written waiver of notice or consent unless so required by the
Certificate of Incorporation or these Bylaws. All such waivers, consents or
approvals shall be filed with the corporate records or made a part of the
minutes of the meetings.
Section
4. Quorum. At all
meetings of the Board of Directors, the presence of a majority of the directors
shall constitute a quorum for the transaction of business.
Section
5. Manner
of Acting. Except
as otherwise provided by law, these Bylaws or the Certificate of Incorporation
of the Corporation, the act of the majority of the direc-tors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
Section
6. Action
Without Meeting. Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, 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 consent in writing, and such writing or writings are filed with the
minutes of proceedings of the Board of Directors.
7
Section
7. Telephonic
Meetings. Members
of the Board of Directors may participate in a meeting of such Board 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 Section shall constitute presence in person at such
meeting.
ARTICLE
V
Committees
of the Board
Section
1. Creation. The
Board of Directors may designate two (2) or more direc-tors to constitute a
Executive Committee or other committees, each of which, to the extent authorized
by law and provided in the resolution shall have and may exercise all of the
authority delegated to the Executive Committee or other committee by the Board
of Directors in the management of the Corporation, except as set forth in
Section 7, below.
Section
2. Vacancy. Any
permanent vacancy occurring on a committee shall be filled by the Board of
Directors.
Section
3. Removal. Any
member of a committee may be removed at any time, with or without cause, by the
Board of Directors.
Section
4. Procedures
and Minutes. Any
such committee shall elect a presiding officer from among its members and may
fix its own rules of procedure, which may not be inconsistent with these Bylaws.
Each committee shall keep regular minutes of its proceedings and report the same
to the Board when required.
Section
5. Meetings;
Quorum. Regular
meetings of any such committee may be held without notice at such time and place
as such committee may fix by resolution. Special meetings of any such committee
may be called by any member thereof upon not less than one (1) days’ notice
stating the place and time of such meeting, which notice may be written or oral,
and if mailed, shall be deemed delivered when deposited in the United States
mail addressed to any member of the committee at his business address. Any
member of the committee may waive notice of meeting and no notice of meeting
need be given to any member thereof who attends in person. The notice of a
meeting of a committee need not state the business proposed to be transacted at
the meeting. A majority of the members of any such committee shall constitute a
quorum for the transaction of business at any meeting thereof, and actions of
such committee must be authorized by the affirmative vote of a majority of the
members pursuant to a meeting at which a quorum is present. In the absence or
disqualification of a member of the committee, the member or members present and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of such absent or disqualified member.
8
Section
6. Responsibility
of Directors. The
designation of a Executive Committee or other committee and the delegation
thereto of authority shall not alone operate to relieve the Board of Directors
or any member thereof, of any responsibility or liability imposed upon it or him
by law.
Section
7. Restrictions
on Committees. Neither
the Executive Committee nor any other com-mittee shall have the authority to:
(a) approve or adopt or recommend to the stockholders, any action or matter
expressly required by the Delaware General Corporation Law to be submitted to
the stockholders for approval; (b) adopt, amend or repeal Bylaws; (c) amend the
Certificate of Incorporation; (d) authorize distributions; (e) fill vacancies on
the Board of Directors or on any of its committees, except as provided in
Section 5, above; (f) approve a plan of merger not requiring stockholder
approval; (g) authorize or approve reacquisition of shares, except according to
a formula or method prescribed by the Board of Directors; (h) authorize or
approve the issuance or sale or contract for sale of shares, or determine the
designation and relative rights, preferences, and limitations of a class or
series of shares, except within limits specifically prescribed by the Board of
Directors; (i) fix compensation of the directors for serving on the Board or on
any committee; or (j) amend or repeal any resolution of the Board of Directors
which by its terms shall not be so amendable or repealable.
ARTICLE
VI
Officers
Section
1. Officers. The
Board of Directors shall elect a President and a Secretary or Assistant
Secretary, and may elect or appoint a chief executive officer, one or more vice
presidents, one or more assistant secretaries, a treasurer or chief financial
officer, and other or additional offic-ers as in its opinion are desirable for
conduct of the business of the Corporation. The Board of Directors may elect
from its own membership a Chairman of the Board. The Board of Directors may by
resolution empower any officer or officers of the Corporation to appoint from
time to time such vice presidents and other or additional officers as in the
opinion of the officer(s) so empowered by the Board are desirable for the
conduct of the business of the Corporation. Any two or more offices may be held
by the same person. In no event, however, may an officer act in more than one
capacity where action of two or more officers is required.
Section
2. Election
and Term. Each
officer of the Corpora-tion shall hold office for the term for which he is
elected or appointed, and until his successor has been duly elected or appointed
and has qualified, or until his death, resignation or removal pursuant to these
Bylaws. Elections by the Board of Directors may be held at any regular or
special meeting of the Board.
Section
3. Removal. Any
officer elected by the Board may be removed, either with or with-out cause, by a
vote of the Board of Directors. Any officer appointed by another officer or
officers may be removed, either with or without cause, by either a vote of the
Board of Directors or by the officer or officers given the power to appoint that
officer. The removal of any person from office shall be without prejudice to the
contract rights, if any, of the person so removed.
9
Section
4. Resignations. Any
officer may resign at any time by giving written notice to the Board of
Directors or to the President or Secretary of the Corporation. Any such
resignation shall take effect upon receipt of the notice.
Section
5. Vacancies. A
vacancy in any office because of death, resignation, removal, disqualification,
or any other cause, shall be filled for the unexpired portion of the term in the
manner prescribed by these Bylaws for regular appointment or elections to such
offices.
Section
6. Compensation. The
compensation of all officers of the Corporation shall be fixed by the Board of
Directors, except that the Board may delegate to any officer who has been given
the power to appoint subordinate officers, the authority to fix the sala-ries of
such appointed officers. No officer shall be prevented from receiving a salary
as an officer by reason of the fact that the officer is also a member of the
Board of Directors.
Section
7. Chairman
of the Board. The
Chairman of the Board of Directors, if elected, shall preside at all meetings of
the Board of Directors and shall perform such other duties as may be prescribed
from time to time by the Board of Directors or by these Bylaws.
Section
8. Chief
Executive Officer. The
Chief Executive Officer, if elected, shall be the principal executive officer of
the Corporation and shall preside at meetings of the Board of Directors in the
absence of the Chairman of the Board. The Chief Executive Officer shall be
subject to the control and direction of the Board of Directors, and shall
super-vise and control the management of the Corporation.
Section
9. President. If no
Chief Executive Officer is elected, the President shall be the principal
executive officer of the Corporation, and shall preside at meetings of the Board
of Directors in the absence of the Chairman of the Board and the Chief Executive
Officer. The President shall be subject to the control and direction of the
Board of Directors, and in general, he shall perform all duties incident to the
office of President and such other duties as may be prescribed by the Board of
Directors, the Chairman of the Board, or the Chief Executive Officer from time
to time.
Section
10. Vice
Presidents. In the
absence or disability of the President or in the event of his death, inability
or refusal to act, the Vice Presidents, in the order of their length of service
as such, unless otherwise determined by the Board of Directors, shall perform
the duties and exercise the powers of the President. In addition, the Vice
Presi-dent shall perform such other duties and have such other powers as the
Board of Directors shall prescribe. Vice Presidents shall not be executive
officers of the Corporation except as designated by the Board of
Directors.
Section
11. Secretary
and Assistant Secretary. The
Secretary shall attend all meetings of the stockholders and of the Board of
Directors, and shall record all acts and proceedings of such meetings in the
minute book of the Corporation. The Secretary shall give notice in conformity
with these Bylaws of all meetings of the stockholders and of all meetings of the
Board of Directors requiring notice. The Secretary shall perform all other
duties given him in these Bylaws and other duties commonly incident to his
office and shall also perform such other duties and have such other powers as
the Board of Directors shall designate from time to time. The President may
direct any
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Assistant
Secretary to assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to his office and shall also perform such other duties
and have such other powers as the Board of Directors or the President shall
designate from time to time.
Section
12.
Chief
Financial Officer or Treasurer and Assistant Treasurer. The
Chief Financial Officer or Treasurer shall keep or cause to be kept the books of
account of the Corporation in a thorough and proper manner, and shall render
statements of the financial affairs of the Corporation in such form and as often
as required by the Board of Directors or the President. The Chief Financial
Officer or Treasurer, subject to the order of the Board of Directors, shall have
the custody of all funds and securities of the Corporation. The Corporation
shall mail the annual financial statements, or a written notice of their
availability, to each stockholder within one hundred twenty (120) days of the
close of each fiscal year. The Chief Financial Officer or Treasurer shall
perform other duties commonly incident to this office and shall also perform
such other duties and have such other powers as the Board of Directors or the
President shall designate from time to time. The President may direct any
Assistant Treasurer to assume and perform the duties of the Chief Financial
Officer or Treasurer in the absence or disability of the Chief Financial Officer
or Treasurer, and each Assistant Treasurer shall perform other duties commonly
incident to this office and shall also perform such other duties and have such
other powers as the Board of Directors or the President shall designate from
time to time.
Section
13.
Controller
and Assistant Controller. The
Controller, if one has been appointed, shall have charge of the accounting
affairs of the Corporation and shall have such other powers and perform such
other duties as the Board of Directors shall designate. Each Assistant
Controller shall have such powers and perform such duties as may be assigned by
the Board of Directors and the Assistant Controllers shall exercise the powers
of the Controller during that officer’s absence or inability to
act.
Section
14.
Duties
of Officers May Be Delegated. In case
of the absence of any officer of the Corporation or for any other reason that
the Board may deem sufficient, the Board may delegate the powers or duties of
such officer to any other officer or to any director for the time being provided
a majority of the entire Board of Directors concurs in such
delegation.
Section
15.
Bonds. The
Board of Directors may, by resolution, require any or all officers, agents and
employees of the Corporation to give bond to the Corporation, with sufficient
securities, conditioned on faithful performance of the duties of their
respective offices or positions, and to comply with such other conditions as may
from time to time be re-quired by the Board of Directors.
ARTICLE
VII
Capital
Stock
Section
1. Certificates. The
interest of each stockholder shall be evidenced by a certificate representing
shares of stock of the Corporation, which shall be in such form as the Board of
Directors may from time to time adopt and shall be numbered and shall be entered
in the books of the Corporation as they are issued. Each certificate shall
exhibit the holders’ name, the number of shares and class of shares and series,
if any, represented thereby, a statement that the Corporation is organized under
the laws of the State of Delaware, and the par value of each share or a
statement that
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the
shares are without par value. Each certificate shall be signed by the President
or a Vice President and the Secretary or an Assistant Secretary or Treasurer or
Assistant Treasurer and shall be sealed with the seal of the Corporation. Any or
all of the signatures on the certificate may be facsimiles. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed on a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued with the same
effect as if he were such officer, transfer agent or registrar at the date of
issue.
Section
2. Transfer
of Shares.
Transfer of shares shall be made on the stock transfer books of the Corporation
only upon surrender of the certificate for the shares sought to be trans-ferred
by the record holder or by a duly authorized agent, transferee or legal
representative. All certificates surren-dered for transfer shall be canceled
before new certificates for the transferred shares shall be issued.
Section
3. Lost
or Destroyed Certificates. A new
certificate or certificates shall be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. The
Corporation may require, as a condition precedent to the issuance of a new
certificate or certificates, the owner of such lost, stolen, or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require or to give to the Corporation a surety bond
in such form and amount as it may direct as indemnity against any claim that may
be made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed.
Section
4. Holder
of Record. The
Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote
as such owner, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person whether
or not it shall have express or other notice thereof, except as otherwise
provided by the laws of Delaware.
Section
5. Treasury
Shares.
Treasury shares of the Corporation shall consist of such shares as have been
issued and thereafter acquired by the Corporation but not cancelled by the
Corporation. Treasury shares shall not carry voting or dividend rights, except
rights in share dividends.
ARTICLE
VIII
General
Provisions
Section
1. Distributions
to Stockholders. The
Board of Directors may from time to time authorize, and the Corporation may
make, distributions to its stockholders (including, without limitation,
dividends and distributions involving acquisition of the Corpora-tion’s shares)
in the manner and upon the terms and conditions provided by law, and sub-ject to
the provisions of its Certificate of Incorporation.
Section
2. Seal. The
seal of the Corporation shall be in such form as the Board of Directors may from
time to time determine.
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Section
3. Depositories
and Checks. All
funds of the Corporation shall be deposited in the name of the Corporation in
such bank, banks, or other financial institutions as the Board of Directors may
from time to time designate and shall be drawn out on checks, drafts or other
orders signed on behalf of the Corporation by such person or persons as the
Board of Directors may from time to time designate.
Section
4. Loans. No
loans shall be contracted on behalf of the Corporation and no evidence of
indebtedness shall be issued in its name unless authorized by a resolution of
the Board of Directors. Such authority may be general or defined to specific
instances.
Section
5. Fiscal
Year. The
fiscal year of the Corporation shall be fixed by the Board of
Directors.
Section
6. Contracts. The
Board of Directors may authorize any officer or officers, agent or agents, to
enter into any contract or execute and deliver any instrument on behalf of the
Corporation, and such authority may be general or confined to specific
instances.
ARTICLE
IX
Amendments
The
Bylaws of the Corporation may be altered or amended and new Bylaws may be
adopted by the stockholders or, if authorized by the Certificate of
Incorporation, by the Board of Directors at any regular or special meeting of
the Board of Directors; provided, however, that, if such action is to be taken
at a meeting of the stockholders, notice of the general nature of the proposed
change in the Bylaws shall have been given in the notice of a meeting. Action by
the stockholders with respect to Bylaws shall be taken by an affirmative vote of
a majority of the shares entitled to elect directors, and action by the
directors with respect to Bylaws shall be taken by an affirmative vote of a
majority of all directors then holding office.
ARTICLE
X
Indemnification
Any
person who at any time serves or has served as a director or officer of the
Corporation, or in such capacity at the request of the Corporation for any other
foreign or domestic corporation, partnership, joint venture, trust or other
enterprise, or as trustee or administrator under an employee benefit plan, shall
have a right to be indemnified by the Corporation to the fullest extent
permitted by law against (a) reasonable expenses, including attorneys’ fees,
actually and necessari-ly incurred by him in connection with any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether or not brought by or on behalf of
the Corporation, seeking to hold him liable by reason of the fact that he is or
was acting in such capacity, and (b) reasonable payments made by him in
satisfaction of any judgment, money decree, fine, penalty or settlement for
which he may have become liable in any such action, suit or
proceeding.
To the
extent permitted by law, expenses incurred by a director or officer in defending
a civil or criminal action, suit or proceeding shall be paid by the Corporation
in advance of the final
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disposition
of such action, suit or proceeding, upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified hereunder by the
Corporation.
If a
person claiming a right to indemnification under this Section obtains a
non-appealable judgment against the Corporation requiring it to pay
substantially all of the amount claimed, the claimant shall be entitled to
recover from the Corporation the reasonable expense (including reasonable legal
fees) of prosecuting the action against the Corporation to collect the
claim.
Notwithstanding
the foregoing provisions, the Corporation shall indemnify or agree to indemnify
any person against liability or litigation expense he may incur if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, and with respect to any criminal action or
proceeding, if he had no reasonable cause to believe his action was
unlawful.
The Board
of Directors of the Corporation shall take all such action as may be necessary
and appropriate to authorize the Corporation to pay the indemnification
re-quired by this Bylaw, including without limitation, to the extent needed,
making a good faith evaluation of the manner in which the claimant for indemnity
acted and of the rea-sonable amount of indemnity due him and giving notice to,
and obtaining approval by, the stockholders of the Corporation.
Any
person who at any time after the adoption of this Bylaw serves or has served in
any of the aforesaid capacities for or on behalf of the Corporation shall be
deemed to be doing or to have done so in reliance upon, and as consideration
for, the right of indemnification provided herein. Such right shall inure to the
benefit of the legal representatives of any such person and shall not be
exclusive of any other rights to which such person may be entitled apart from
the provision of this Bylaw.
The
rights granted hereunder shall not be limited by the provisions contained in
Section 145 of the General Corporation Law of Delaware or any successor to such
statute.
Unless
otherwise provided herein, the indemnification extended to a person that has
qualified for indemnification under the provisions of this Article X shall not
be terminated when the person has ceased to be a director, officer, employee or
agent for all causes of action against the indemnified party based on acts and
events occurring prior to the termination of the relationship with the
Corporation and shall inure to the benefit of the heirs, executors and
administrators of such person.
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