Attached files
file | filename |
---|---|
8-K - FORM 8-K - TERREMARK WORLDWIDE INC. | g26793e8vk.htm |
EX-3.1 - EX-3.1 - TERREMARK WORLDWIDE INC. | g26793exv3w1.htm |
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
TERREMARK WORLDWIDE, INC.
(a Delaware corporation)
OF
TERREMARK WORLDWIDE, INC.
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly come before the meeting
shall be held each year at such date and time, within or without the State of Delaware, as the
Board of Directors shall determine.
SECTION 2. Special Meetings. Special meetings of stockholders for the transaction of
such business as may properly come before the meeting may be called by order of the Board of
Directors or by stockholders holding together at least a majority of all the shares of the
Corporation entitled to vote at the meeting, and shall be held at such date and time, within or
outside the State of Delaware, as may be specified by such order. Whenever the directors shall
fail to fix such place, the meeting shall be held at the principal executive office of the
Corporation.
SECTION 3. Notice of Meetings. Written notice of all meetings of the stockholders,
stating the place (if any), date and hour of the meeting, the means of remote communications, if
any, by which stockholders and proxy holders may be deemed to be present in person and vote at such
meeting, and the place within the city or other municipality or community at which the list of
stockholders may be examined, shall be mailed or delivered to each stockholder not less than 10 nor
more than 60 days prior to the meeting. Notice of any special meeting shall state in general terms
the purpose or purposes for which the meeting is to be held.
SECTION 4. Stockholder Lists. The officer who has charge of the stock ledger of the
Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane 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 so specified, at the place where
the meeting is to be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by this section or the books of the Corporation, or to vote in
person or by proxy at any meeting of stockholders.
SECTION 5. Quorum. Except as otherwise provided by law or the Corporations
Certificate of Incorporation, a quorum for the transaction of business at any meeting of
stockholders shall consist of the holders of record of a majority of the issued and outstanding
shares of the capital stock of the Corporation entitled to vote at the meeting, present in person
or by proxy. If there be no such quorum, the holders of a majority of such shares so present or
represented may adjourn the meeting from time to time, without further notice, until a quorum shall
have been obtained. When a quorum is once present it is not broken by the subsequent withdrawal of
any stockholder.
SECTION 6. Organization. Meetings of stockholders shall be presided over by the
Chairman, if any, or if none or in the Chairmans absence the Vice-Chairman, if any, or if none or
in the Vice-Chairmans absence the President, if any, or if none or in the Presidents absence a
Vice-President, or, if none of the foregoing is present, by a chairman to be chosen by the
stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary
of the Corporation, or in the Secretarys absence an Assistant Secretary, shall act as secretary of
every meeting, but if neither the Secretary nor an Assistant Secretary is present, the presiding
officer of the meeting shall appoint any person present to act as secretary of the meeting.
SECTION 7. Voting; Proxies; Required Vote. (a) At each meeting of stockholders,
every stockholder shall be entitled to vote in person or by proxy appointed by instrument in
writing, subscribed by such stockholder or by such stockholders duly authorized attorney-in-fact
(but no such proxy shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period), and, unless the Certificate of Incorporation provides otherwise,
shall have one vote for each share of stock entitled to vote registered in the name of such
stockholder on the books of the Corporation on the applicable record date fixed pursuant to these
By-laws. At all elections of directors the voting may but need not be by ballot and 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 shall elect. Except as otherwise required by law or the
Certificate of Incorporation, any other action shall be authorized by the vote of the majority of
the shares present in person or represented by proxy at the meeting and entitled to vote on the
subject matter.
(b) Any action required or permitted to be taken at any meeting of stockholders may, except as
otherwise required by law or the Certificate of Incorporation, be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall
be signed by the holders of record of the issued and outstanding capital stock of the Corporation
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, and the
writing or writings are filed with the permanent records of the Corporation. Prompt notice of the
taking of corporate action without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
2
(c) Where a separate vote by a class or classes, present in person or represented by proxy,
shall constitute a quorum entitled to vote on that matter, the affirmative vote of the majority of
shares of such class or classes present in person or represented by proxy at the meeting shall be
the act of such class, unless otherwise provided in the Corporations Certificate of Incorporation.
SECTION 8. Inspectors. The Board of Directors, in advance of any meeting, may, but
need not, appoint one or more inspectors of election to act at the meeting or any adjournment
thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting
may, but need not, appoint one or more inspectors. In case any person who may be appointed as an
inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any,
before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector at such meeting with strict impartiality and according to the best
of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting, the existence of a
quorum, and the validity and effect of proxies, and shall receive votes, ballots or consents, hear
and determine all challenges and questions arising in connection with the right to vote, count and
tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of the person presiding
at the meeting, the inspector or inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by such inspector or inspectors and execute a certificate
of any fact found by such inspector or inspectors.
ARTICLE II
Board of Directors
SECTION 1. General Powers. The business, property and affairs of the Corporation
shall be managed by, or under the direction of, the Board of Directors.
SECTION 2. Qualification; Number; Term; Remuneration. (a) Each director shall be at
least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a
resident of the State of Delaware. The number of directors constituting the entire Board shall be
1, or such larger number as may be fixed from time to time by action of the stockholders or Board
of Directors, one of whom may be selected by the Board of Directors to be its Chairman. The use of
the phrase entire Board herein refers to the total number of directors which the Corporation
would have if there were no vacancies.
(b) Directors who are elected at an annual meeting of stockholders, and directors who are
elected in the interim to fill vacancies and newly created directorships, shall hold office until
the next annual meeting of stockholders and until their successors are elected and qualified or
until their earlier resignation or removal.
3
(c) Directors may be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee meetings.
SECTION 3. Quorum and Manner of Voting. Except as otherwise provided by law, a
majority of the entire Board shall constitute a quorum. A majority of the directors present,
whether or not a quorum is present, may adjourn a meeting from time to time to another time and
place without notice. The vote of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
SECTION 4. Places of Meetings. Meetings of the Board of Directors may be held at any
place within or outside the State of Delaware, as may from time to time be fixed by resolution of
the Board of Directors, or as may be specified in the notice of meeting.
SECTION 5. Annual Meeting. Following the annual meeting of stockholders, the newly
elected Board of Directors shall meet for the purpose of the election of officers and the
transaction of such other business as may properly come before the meeting. Such meeting may be
held without notice immediately after the annual meeting of stockholders at the same place at which
such stockholders meeting is held.
SECTION 6. Regular Meetings. Regular meetings of the Board of Directors shall be held
at such times and places as the Board of Directors shall from time to time by resolution determine.
Notice need not be given of regular meetings of the Board of Directors held at times and places
fixed by resolution of the Board of Directors.
SECTION 7. Special Meetings. Special meetings of the Board of Directors shall be held
whenever called by the Chairman of the Board, President or by a majority of the directors then in
office.
SECTION 8. Notice of Meetings. A notice of the place, date and time and the purpose
or purposes of each meeting of the Board of Directors shall be given to each director by mailing
the same at least two days before the special meeting, or by telephoning or emailing the same or by
delivering the same personally not later than the day before the day of the meeting.
SECTION 9. Organization. At all meetings of the Board of Directors, the Chairman, if
any, or if none or in the Chairmans absence or inability to act the President, or in the
Presidents absence or inability to act any Vice-President who is a member of the Board of
Directors, or in such Vice-Presidents absence or inability to act a chairman chosen by the
directors, shall preside. The Secretary of the Corporation shall act as secretary at all meetings
of the Board of Directors when present, and, in the Secretarys absence, the presiding officer may
appoint any person to act as secretary.
4
SECTION 10. Resignation. Any director may resign at any time upon written notice to
the Corporation and such resignation shall take effect upon receipt thereof by the President or
Secretary, unless otherwise specified in the resignation. Any or all of the directors may be
removed, with or without cause, by the holders of a majority of the shares of stock outstanding and
entitled to vote for the election of directors.
SECTION 11. Vacancies. Unless otherwise provided in these By-laws, vacancies on the
Board of Directors, whether caused by resignation, death, disqualification, removal, an increase in
the authorized number of directors or otherwise, may be filled by the affirmative vote of a
majority of the remaining directors, although less than a quorum, or by a sole remaining director,
or at a special meeting of the stockholders, by the holders of shares entitled to vote for the
election of directors.
SECTION 12. Action by Written Consent. Any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting if all the directors
consent thereto in writing, and the writing or writings are filed with the minutes of proceedings
of the Board of Directors.
ARTICLE III
Committees
SECTION 1. Appointment. From time to time the Board of Directors by a resolution
adopted by a majority of the entire Board may appoint any committee or committees for any purpose
or purposes, to the extent lawful, which shall have powers as shall be determined and specified by
the Board of Directors in the resolution of appointment.
SECTION 2. Procedures, Quorum and Manner of Acting. Each committee shall fix its own
rules of procedure, and shall meet where and as provided by such rules or by resolution of the
Board of Directors. Except as otherwise provided by law, the presence of a majority of the then
appointed members of a committee shall constitute a quorum for the transaction of business by that
committee, and in every case where a quorum is present the affirmative vote of a majority of the
members of the committee present shall be the act of the committee. Each committee shall keep
minutes of its proceedings, and actions taken by a committee shall be reported to the Board of
Directors.
SECTION 3. Action by Written Consent. Any action required or permitted to be taken at
any meeting of any committee of the Board of Directors may be taken without a meeting if all the
members of the committee consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the committee.
SECTION 4. Term; Termination. In the event any person shall cease to be a director of
the Corporation, such person shall simultaneously therewith cease to be a member of any committee
appointed by the Board of Directors.
5
ARTICLE IV
Officers
SECTION 1. Election and Qualifications. The Board of Directors shall elect the
officers of the Corporation, which shall include a President and a Secretary, and may include, by
election or appointment, one or more Vice-Presidents (any one or more of whom may be given an
additional designation of rank or function), a Treasurer and such assistant secretaries, such
Assistant Treasurers and such other officers as the Board may from time to time deem proper. Each
officer shall have such powers and duties as may be prescribed by these By-laws and as may be
assigned by the Board of Directors or the President. Any two or more offices may be held by the
same person.
SECTION 2. Term of Office and Remuneration. The term of office of all officers shall
be one year and until their respective successors have been elected and qualified, but any officer
may be removed from office, either with or without cause, at any time by the Board of Directors.
Any vacancy in any office arising from any cause may be filled for the unexpired portion of the
term by the Board of Directors. The remuneration of all officers of the Corporation may be fixed
by the Board of Directors or in such manner as the Board of Directors shall provide.
SECTION 3. Resignation; Removal. Any officer may resign at any time upon written
notice to the Corporation and such resignation shall take effect upon receipt thereof by the
President or Secretary, unless otherwise specified in the resignation. Any officer shall be
subject to removal, with or without cause, at any time by vote of a majority of the entire Board.
SECTION 4. Chairman of the Board. The Chairman of the Board of Directors, if there be
one, shall preside at all meetings of the Board of Directors and shall have such other powers and
duties as may from time to time be assigned by the Board of Directors.
SECTION 5. President and Chief Executive Officer. The President shall be the chief
executive officer of the Corporation, and shall have such duties as customarily pertain to that
office. The President shall have general management and supervision of the property, business and
affairs of the Corporation and over its other officers; may appoint and remove assistant officers
and other agents and employees, other than officers referred to in Section 1 of this Article IV;
and may execute and deliver in the name of the Corporation powers of attorney, contracts, bonds and
other obligations and instruments.
SECTION 6. Vice-President. A Vice-President may execute and deliver in the name of
the Corporation contracts and other obligations and instruments pertaining to the regular course of
the duties of said office, and shall have such other authority as from time to time may be assigned
by the Board of Directors or the President.
6
SECTION 7. Treasurer. The Treasurer shall in general have all duties incident to the
position of Treasurer and such other duties as may be assigned by the Board of Directors or the
President.
SECTION 8. Secretary. The Secretary shall in general have all the duties incident to
the office of Secretary and such other duties as may be assigned by the Board of Directors or the
President.
SECTION 9. Assistant Officers. Any assistant officer shall have such powers and
duties of the officer such assistant officer assists as such officer or the Board of Directors
shall from time to time prescribe.
ARTICLE V
Indemnification of Directors, Officers, Employees and other Corporate Agents
SECTION 1. Action, Etc., Other Than By or in the Right of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer, employee, trustee or
agent of a subsidiary of the Corporation or another corporation, partnership, joint venture, trust
or other enterprise (all such persons being referred to hereinafter as an Agent), against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best interests of the
Corporation, and with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, that he had reasonable cause to believe that his
conduct was unlawful.
SECTION 2. Action, Etc., By or in the Right of the Corporation. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to procure a judgment in
its favor by reason of the fact that he is or was an Agent against expenses (including attorneys
fees) actually and reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been adjudged to be liable
to the Corporation by a court of competent jurisdiction, after exhaustion of all appeals therefrom,
unless and only
7
to the extent that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
SECTION 3. Determination of Right of Indemnification. Any indemnification under
Sections 1 and 2 of this Article V (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that indemnification of the Agent is
proper in the circumstances because the Agent has met the applicable standard of conduct set forth
in Sections 1 and 2 of this Article V, which determination is made (a) by the Board of Directors,
by a majority vote of a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (b) if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel in a written opinion, or (c) by
the stockholders.
SECTION 4. Indemnification Against Expenses of Succesful Party. Notwithstanding the
other provisions of this Article V, to the extent that an Agent has been successful on the merits
or otherwise, including the dismissal of an action without prejudice or the settlement of an action
without admission of liability, in defense of any action, suit or proceeding referred to in
Sections 1 and 2 of this Article V, or in defense of any claim, issue or matter therein, such Agent
shall be indemnified against expenses, including attorneys fees actually and reasonably incurred
by such Agent in connection therewith.
SECTION 5. Advances of Expenses. Except as limited by Section 6 of this Article V,
expenses incurred by an Agent in defending any civil or criminal action, suit, or proceeding shall
be paid by the Corporation in advance of the final disposition of such action, suit or proceeding,
if the Agent shall undertake to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified as authorized in this Article V. Notwithstanding the
foregoing, no advance shall be made by the Corporation if a determination is reasonably and
promptly made by the Board of Directors by a majority vote of a quorum of disinterested directors,
or (if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors
so directs) by independent legal counsel in a written opinion, that, based upon the facts known to
the Board of Directors or counsel at the time such determination is made, such person acted in bad
faith and in a manner that such person did not believe to be in or not opposed to the best interest
of the Corporation, or, with respect to any criminal proceeding, that such person believed or had
reasonable cause to believe his conduct was unlawful.
SECTION 6. Right of Agent to Indemnification upon Application; Procedure upon
Application. Any indemnification or advance under this Article V shall be made promptly, and
in any event within ninety (90) days, upon the written request of the Agent, unless a determination
shall be made in the manner set forth in the second sentence of Section 5 of this Article V hereof
that such Agent acted in a manner set forth therein so as to justify the Corporations not
indemnifying or making an advance to the Agent. The
8
right to indemnification or advances as granted by this Article V shall be enforceable by the
Agent in any court of competent jurisdiction, if the Board of Directors or independent legal
counsel denies the claim, in whole or in part, or if no disposition of such claim is made within
ninety (90) days. The Agents expenses incurred in connection with successfully establishing his
right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by
the Corporation.
SECTION 7. Other Rights and Remedies. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article V shall not be deemed exclusive of any other
rights to which an Agent seeking indemnification or advancement of expenses may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to
action in his official capacity and as to action in another capacity while holding such office, and
shall, unless otherwise provided when authorized or ratified, continue as to a person who has
ceased to be an Agent and shall inure to the benefit of the heirs, executors and administrators of
such a person. All rights to indemnification under this Article V shall be deemed to be provided by
a contract between the Corporation and the Agent who serves in such capacity at any time while
these Bylaws and other relevant provisions of the Delaware General Corporation Law and other
applicable law, if any, are in effect. Any repeal or modification thereof shall not affect any
rights or obligations then existing.
SECTION 8. Insurance. Upon resolution passed by the Board of Directors, the
Corporation may purchase and maintain insurance on behalf of any person who is or was an Agent
against any liability asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article V.
SECTION 9. Constituent Corporations. For the purposes of this Article V, references to
the Corporation shall include, in addition to the resulting corporation, all constituent
corporations (including all constituents of constituents) absorbed in a consolidation or merger as
well as the resulting or surviving corporation, which, if the separate existence of such
constituent corporation had continued, would have had power and authority to indemnify its Agents,
so that any Agent of such constituent corporation shall stand in the same position under the
provisions of the Article V with respect to the resulting or surviving corporation as that Agent
would have with respect to such constituent corporation if its separate existence had continued.
SECTION 10. Other Enterprises, Fines, and Serving at Corporations Request. For
purposes of this Article V, references to other enterprises shall include employee benefit plans;
references to fines shall include any excise taxes assessed on a person with respect to any
employee benefit plan; and references to serving at the request of the Corporation shall include
any service as a director, officer, employee or agent of the Corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with respect to any employee
benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed
to be in the interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner not opposed to the best interests of the Corporation as
referred to in this Article V.
9
SECTION 11. Savings Clause. If this Article V or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Agent as to expenses (including attorneys fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal,
administrative or investigative, and whether internal or external, including a grand jury
proceeding and an action or suit brought by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article V that shall not have been invalidated, or by
any other applicable law.
ARTICLE VI
Books and Records
SECTION 1. Location. The books and records of the Corporation may be kept at such
place or places within or outside the State of Delaware as the Board of Directors or the respective
officers in charge thereof may from time to time determine. The record books containing the names
and addresses of all stockholders, the number and class of shares of stock held by each and the
dates when they respectively became the owners of record thereof shall be kept by the Secretary as
prescribed in the By-laws and by such officer or agent as shall be designated by the Board of
Directors.
SECTION 2. Addresses of Stockholders. Notices of meetings and all other corporate
notices may be delivered personally or mailed to each stockholder at the stockholders address as
it appears on the records of the Corporation.
SECTION 3. Fixing Date for Determination of Stockholders of Record. (a) In order
that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, 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 60 nor less than 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.
10
(b) In order that the Corporation may determine 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 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, 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 by delivery to its registered office in this State, 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 Corporations registered office
shall be by hand or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of Directors is required by
this chapter, 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.
(c) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or the stockholders entitled to
exercise 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 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 be not more than 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.
ARTICLE VII
Certificates Representing Stock
SECTION 1. Certificates; Signatures. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors of the Corporation may provide by
resolution or resolutions that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a
resolution by the Board of Directors, every holder of stock 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 or Vice-Chairman of the Board of Directors, or the
President or Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, representing the number of shares registered in certificate
form. Any and all signatures on any such certificate may be facsimiles. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, 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. The name of the holder of
record of the shares represented thereby, with the number of such shares and the date of
issue, shall be entered on the books of the Corporation.
11
SECTION 2. Transfers of Stock. Upon compliance with provisions restricting the
transfer or registration of transfer of shares of stock, if any, shares of capital stock shall be
transferable on the books of the Corporation only by the holder of record thereof in person, or by
duly authorized attorney, upon surrender and cancellation of certificates for a like number of
shares, properly endorsed, and the payment of all taxes due thereon.
SECTION 3. Fractional Shares. The Corporation may, but shall not be required to,
issue certificates for fractions of a share where necessary to effect authorized transactions, or
the Corporation may pay in cash the fair value of fractions of a share as of the time when those
entitled to receive such fractions are determined, or it may issue scrip in registered or bearer
form over the manual or facsimile signature of an officer of the Corporation or of its agent,
exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to
any rights of a stockholder except as therein provided.
The Board of Directors shall have power and authority to make all such rules and regulations
as it may deem expedient concerning the issue, transfer and registration of certificates
representing shares of the Corporation.
SECTION 4. Lost, Stolen or Destroyed Certificates. The Corporation may issue a new
certificate of stock in place of any certificate, theretofore issued by it, alleged to have been
lost, stolen or destroyed, and the Board of Directors may require the owner of any lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to
indemnify the Corporation 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.
ARTICLE VIII
Dividends
Subject always to the provisions of law and the Certificate of Incorporation, the Board of
Directors shall have full power to determine whether any, and, if any, what part of any, funds
legally available for the payment of dividends shall be declared as dividends and paid to
stockholders; the division of the whole or any part of such funds of the Corporation shall rest
wholly within the lawful discretion of the Board of Directors, and it shall not be required at any
time, against such discretion, to divide or pay any part of such funds among or to the stockholders
as dividends or otherwise; and before payment of any dividend, 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
Corporation, and the Board of Directors may modify or abolish any such reserve in the manner
in which it was created.
12
ARTICLE IX
Ratification
Any transaction, questioned in any law suit on the ground of lack of authority, defective or
irregular execution, adverse interest of director, officer or stockholder, non-disclosure,
miscomputation, or the application of improper principles or practices of accounting, may be
ratified before or after judgment, by the Board of Directors or by the stockholders, and if so
ratified shall have the same force and effect as if the questioned transaction had been originally
duly authorized. Such ratification shall be binding upon the Corporation and its stockholders and
shall constitute a bar to any claim or execution of any judgment in respect of such questioned
transaction.
ARTICLE X
Corporate Seal
The corporate seal shall have inscribed thereon the name of the Corporation and the year of
its incorporation, and shall be in such form and contain such other words and/or figures as the
Board of Directors shall determine. The corporate seal may be used by printing, engraving,
lithographing, stamping or otherwise making, placing or affixing, or causing to be printed,
engraved, lithographed, stamped or otherwise made, placed or affixed, upon any paper or document,
by any process whatsoever, an impression, facsimile or other reproduction of said corporate seal.
ARTICLE XI
Fiscal Year
The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the
Board of Directors. Unless otherwise fixed by the Board of Directors, the fiscal year of the
Corporation shall be the calendar year.
ARTICLE XII
Waiver of Notice
Whenever notice is required to be given by these By-laws or by the Certificate of
Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to said
notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
13
ARTICLE XIII
Bank Accounts, Drafts, Contracts, Etc.
SECTION 1. Bank Accounts and Drafts. In addition to such bank accounts as may be
authorized by the Board of Directors, the primary financial officer or any person designated by
said primary financial officer, whether or not an employee of the Corporation, may authorize such
bank accounts to be opened or maintained in the name and on behalf of the Corporation as he may
deem necessary or appropriate, payments from such bank accounts to be made upon and according to
the check of the Corporation in accordance with the written instructions of said primary financial
officer, or other person so designated by the Treasurer.
SECTION 2. Contracts. The Board of Directors may authorize any person or persons, in
the name and on behalf of the Corporation, to enter into or execute and deliver any and all deeds,
bonds, mortgages, contracts and other obligations or instruments, and such authority may be general
or confined to specific instances.
SECTION 3. Proxies; Powers of Attorney; Other Instruments. The Chairman, the
President or any other person designated by either of them shall have the power and authority to
execute and deliver proxies, powers of attorney and other instruments on behalf of the Corporation
in connection with the rights and powers incident to the ownership of stock by the Corporation.
The Chairman, the President or any other person authorized by proxy or power of attorney executed
and delivered by either of them on behalf of the Corporation may attend and vote at any meeting of
stockholders of any company in which the Corporation may hold stock, and may exercise on behalf of
the Corporation any and all of the rights and powers incident to the ownership of such stock at any
such meeting, or otherwise as specified in the proxy or power of attorney so authorizing any such
person. The Board of Directors, from time to time, may confer like powers upon any other person.
SECTION 4. Financial Reports. The Board of Directors may appoint the primary
financial officer or other fiscal officer or any other officer to cause to be prepared and
furnished to stockholders entitled thereto any special financial notice and/or financial statement,
as the case may be, which may be required by any provision of law.
ARTICLE XIV
Amendments
The Board of Directors shall have power to adopt, amend or repeal By-laws. By-laws adopted by
the Board of Directors may be repealed or changed, and new By-laws made, by the stockholders, and
the stockholders may prescribe that any By-law made by them shall not be altered, amended or
repealed by the Board of Directors.
14