VIA NET.WORKS, INC.
BYLAWS
Adopted
as of
______________________, 2000
TABLE OF CONTENTS
Page
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1. OFFICES ..........................................................1
1.1. Registered Office.. ........................................1
1.2. Other Offices...... ........................................1
2. MEETINGS OF STOCKHOLDERS .........................................1
2.1. Place of Meetings...........................................1
2.2. Annual Meetings.............................................1
2.3. Special Meetings............................................3
2.4. Notice of Meetings..........................................3
2.5. Waivers of Notice...........................................3
2.6. List of Stockholders........................................4
2.7. Quorum at Meetings..........................................4
2.8. Voting and Proxies..........................................5
2.9. Required Vote...............................................5
2.10. Action Without a Meeting....................................5
2.11. Inspectors..................................................6
3. DIRECTORS ........................................................7
3.1. Powers......................................................7
3.2. Number and Election.........................................7
3.3. Vacancies; Resignation......................................7
3.4. Meetings....................................................8
3.4.1. Regular Meetings.....................................8
3.4.2. Special Meetings.....................................8
3.4.3. Telephone Meetings...................................8
3.4.4. Action Without Meeting...............................8
3.4.5. Waiver of Notice of Meeting..........................8
3.5. Quorum and Vote at Meetings.................................9
3.6. Committees of Directors.....................................9
3.7. Compensation of Directors...................................9
4. OFFICERS .........................................................10
4.1. Positions...................................................10
4.2. Chairperson.................................................10
4.3. Chief Executive Officer.....................................10
4.4. President...................................................11
4.5. Chief Operating Officer.....................................11
4.6. Chief Financial Officer.....................................11
4.7. Senior Vice President.......................................12
4.8. Vice Presidents.............................................12
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4.9. Secretary...................................................12
4.10. Assistant Secretary.........................................12
4.11. Treasurer...................................................12
4.12. Assistant Treasurer.........................................13
4.13. Term of Office..............................................13
4.14. Compensation................................................13
4.15. Fidelity Bonds..............................................13
5. CAPITAL STOCK ....................................................13
5.1. Certificates of Stock; Uncertificated Shares................13
5.2. Lost Certificates...........................................14
5.3. Record Date.................................................14
5.3.1. Actions by Stockholders.............................14
5.3.2. Payments............................................15
5.4. Stockholders of Record......................................15
6. INDEMNIFICATION; INSURANCE .......................................15
6.1. Authorization of Indemnification............................15
6.2. Right of Claimant to Bring Action Against the Corporation...16
6.3. Non-exclusivity.............................................17
6.4. Survival of Indemnification.................................17
6.5. Insurance...................................................17
7. GENERAL PROVISIONS ...............................................18
7.1. Inspection of Books and Records.............................18
7.2. Dividends...................................................18
7.3. Reserves....................................................18
7.4. Execution of Instruments....................................18
7.5. Fiscal Year.................................................18
7.6. Seal........................................................19
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Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
VIA NET.WORKS, INC.
1. OFFICES
1.1. Registered Office
The registered office of the Corporation shall be in Wilmington,
Delaware.
1.2. Other Offices
The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors of the
Corporation (the "Board") may from time to time determine or as may be
necessary or useful in connection with the business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. Place of Meetings
All meetings of the stockholders shall be held at such place as may be
fixed from time to time by the Board, the Chairperson, Chief Executive Officer
or the President.
2.2. Annual Meetings
(a) The Corporation shall hold annual meetings of stockholders on such
date and at such time as shall be designated from time to time by the Board, the
Chairperson, the Chief Executive Officer or the President. At each annual
meeting, the stockholders shall elect by a plurality vote (as provided in
Section 2.9 hereof) directors to succeed those whose terms expire at the time of
the annual meeting. The nomination of persons for election to the Board and the
proposal of any other business to be transacted at an annual meeting may be made
only (i) by or at the direction of the Board or (ii) by any stockholder of
record who gives notice in accordance with the procedures set forth in paragraph
(b) of this Section 2.2 and who is a stockholder of record both on the date of
giving such notice and on the
record date for the determination of stockholders entitled to vote at such
annual meeting; only persons thereby nominated shall be eligible to serve as
directors and only business thereby proposed shall be transacted at an annual
meeting. The presiding officer of the annual meeting shall determine whether a
nomination or any proposal of business complies or complied with this Section
2.2.
(b) For nominations and other business to be brought properly before
an annual meeting by a stockholder pursuant to clause (ii) of paragraph (a) of
this Section 2.2, the stockholder must deliver notice to the Secretary of the
Corporation at the principal executive offices of the Corporation in accordance
with this Section 2.2(b). The notice must be received by the Secretary not less
than 60 days nor more than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
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date of the annual meeting is advanced by more than 30 days or delayed by more
than 60 days from such anniversary date, the stockholder must so deliver the
notice not earlier than the 90th day prior to such annual meeting and not later
than the close of business on the later of the 60th day prior to such annual
meeting or the tenth day following the day on which public announcement of the
date of such meeting is first made; provided further, however, that in the event
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that the number of directors to be elected to the Board is increased and there
is no public announcement naming all of the nominees for director or specifying
the size of the increased Board made by the Corporation at least 70 days prior
to the first anniversary of the preceding annual meeting, with respect to
nominees for any new position created by the increase, the stockholder must so
deliver the notice not later than the close of business on the tenth day
following the day on which such public announcement is first made. The
stockholder's notice must set forth: (i) as to each person whom the stockholder
proposes to nominate for election or reelection as a director, all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors pursuant to Section 14(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the rules and
regulations thereunder (together with such person's written consent to being
named in the proxy statement as a nominee and to serving as a director if
elected), whether or not the Corporation is then subject to Section 14(a) and
such rules and regulations; (ii) as to any other business that the stockholder
proposes to transact at the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting the business at the
meeting and any material interest in the business of the stockholder and of the
beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, the name and address of the
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner and a
representation that the stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting. For purposes of
this Section 2.2 and Section 2.3 hereof, a "public announcement" means
disclosure in
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a press release reported by the Dow Jones News Service, Associated Press or
comparable news service, in a document publicly filed with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act (or
their successor provisions), or in a notice of meeting or proxy statement mailed
generally to the Corporation's stockholders. In giving notice under this Section
2.2, a stockholder must also comply with state law and the Exchange Act (and the
rules and regulations thereunder). Nothing in this Section 2.2 shall be deemed
to affect the rights of a stockholder to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 (or its successor
provision) under the Exchange Act.
2.3. Special Meetings
Special meetings of the stockholders, for any purpose or purposes,
unless otherwise prescribed by statute, may be called only by the Board, the
Chairperson, the Chief Executive Officer, or the President or by the holders of
a majority of the then outstanding shares of stock of the Corporation entitled
to vote generally in the election of directors. Business transacted at any
special meeting of stockholders shall be limited to the purposes stated in the
notice relating to such meeting (or to the purposes for which the meeting is
called if such notice is waived or is not required as provided in the General
Corporation Law of the State of Delaware (the "Delaware General Corporation
Law") or these Bylaws). In the case of a special meeting of stockholders called
for the purpose of electing directors, nominations may be made only (i) by or at
the direction of the Board or (ii) by any stockholder of record who delivers to
the Secretary, no later than the tenth day following the day on which public
announcement of the special meeting is made, a notice that complies with and is
delivered in accordance with Section 2.2(b) above.
2.4. Notice of Meetings
Written notice of any meeting of stockholders, stating the place, date
and hour of the meeting, and (if it is a special meeting) the purpose or
purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than ten nor more than 60 days before
the date of the meeting (except to the extent that such notice is waived or is
not required as provided in the Delaware General Corporation Law or these
Bylaws). Such notice shall be given in accordance with, and shall be deemed
effective as set forth in, Section 222 (or any successor section) of the
Delaware General Corporation Law.
2.5. Waivers of Notice
Whenever the giving of any notice is required by statute, the
Certificate of Incorporation or these Bylaws, a waiver thereof, in writing and
delivered to the Corporation, signed by the person or persons entitled to said
notice,
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whether before or after the event as to which such notice is required, shall be
deemed equivalent to notice. Attendance of a stockholder at a meeting shall
constitute a waiver of notice (1) of such meeting, except when the stockholder
at the beginning of the meeting objects to holding the meeting or transacting
business at the meeting, and (2) (if it is a special meeting) of consideration
of a particular matter at the meeting that is not within the purpose or purposes
described in the meeting notice, unless the stockholder objects to considering
the matter at the time during the meeting at which the matter is first
identified as a matter to be considered at the meeting.
2.6. List of Stockholders
After the record date for a meeting of stockholders has been fixed, at
least ten days before such meeting, the officer who has charge of the stock
ledger of the Corporation shall make a list of all 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, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place in the city where the meeting
is to be held, which place is to be specified in the notice of the meeting, or
at the place where the meeting is to be held. Such list shall also, for the
duration of the meeting, be produced and kept open to the examination of any
stockholder who is present at the time and place of the meeting.
2.7. Quorum at Meetings
Stockholders may take action on a matter at a meeting only if a quorum
exists with respect to that matter. Except as otherwise provided by statute or
by the Certificate of Incorporation, the holders of a majority of the shares
entitled to vote at the meeting, and who are present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. Where a separate vote by a class or classes is
required, a majority of the outstanding shares of such class or classes, present
in person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter. Once a share is represented for
any purpose at a meeting (other than solely to object (1) to holding the meeting
or transacting business at the meeting, or (2) (if it is a special meeting) to
consideration of a particular matter at the meeting that is not within the
purpose or purposes described in the meeting notice), it is deemed present for
quorum purposes for the remainder of the meeting and for any adjournment of that
meeting unless a new record date is or must be set for the adjourned meeting.
The holders of a majority of the voting shares represented at a meeting, whether
or not a quorum is present, may adjourn such meeting from time to time.
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2.8. Voting and Proxies
Unless otherwise provided in the Delaware General Corporation Law or
in the Corporation's Certificate of Incorporation, and subject to the other
provisions of these Bylaws, each stockholder shall be entitled to one vote on
each matter, in person or by proxy, for each share of the Corporation's capital
stock that has voting power and that is held by such stockholder. No proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed appointment of proxy shall be
irrevocable if the appointment form states that it is irrevocable and if, and
only as long as, it is coupled with an interest sufficient in law to support an
irrevocable power.
2.9. Required Vote
When a quorum is present at any meeting of stockholders, all matters
shall be determined, adopted and approved by the affirmative vote (which need
not be by ballot) of the holders of a majority of the shares present in person
or represented by proxy at the meeting and entitled to vote with respect to the
matter, unless the proposed action is one upon which, by express provision of
statutes or of the Certificate of Incorporation, a different vote is specified
and required, in which case such express provision shall govern and control with
respect to that vote on that matter. Where a separate vote by a class or classes
is required, the affirmative vote of the holders of a majority of the shares of
such class or classes present in person or represented by proxy at the meeting
shall be the act of such class. Notwithstanding the foregoing, 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.
2.10. Action Without a Meeting
Any action required or permitted to be taken at a stockholders'
meeting may be taken without a meeting, without prior notice and without a vote,
if the action is taken by persons who would be entitled to vote at a meeting and
who hold shares having voting power equal to not less than the minimum number of
votes of each class or series that would be necessary to authorize or take the
action at a meeting at which all shares of each class or series entitled to vote
were present and voted. The action must be evidenced by one or more written
consents describing the action taken, signed by the stockholders entitled to
take action without a meeting, and delivered to the Corporation in the manner
prescribed by the Delaware General Corporation Law for inclusion in the minute
book. No consent shall be effective to take the corporate action specified
unless the number of consents required to take such action are delivered to the
Corporation within sixty days of the delivery of the earliest-dated consent.
Written notice of the action taken shall be given in accordance with the
Delaware General Corporation Law to all stockholders who do not participate in
taking the action who would have been
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entitled to notice if such action had been taken at a meeting having a record
date on the date that written consents signed by a sufficient number of holders
to take the action were delivered to the Corporation.
2.11. Inspectors
Prior to any meeting of stockholders, the Board, the Chief Executive
Officer, or the President shall appoint one or more inspectors to act at such
meeting and make a written report thereof and may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at the meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors shall ascertain the number of shares outstanding and the
voting power of each, determine the shares represented at the meeting and the
validity of proxies and ballots, count all votes and ballots, determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by the inspectors and certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots. The inspectors may appoint or retain other persons to assist them in
the performance of their duties. The date and time of the opening and closing of
the polls for each matter upon which the stockholders will vote at a meeting
shall be announced at the meeting. No ballot, proxy or vote, nor any revocation
thereof or change thereto, shall be accepted by the inspectors after the closing
of the polls. In determining the validity and counting of proxies and ballots,
the inspectors shall be limited to an examination of the proxies, any envelopes
submitted therewith, any information provided by a stockholder who submits a
proxy by telegram, cablegram or other electronic transmission from which it can
be determined that the proxy was authorized by the stockholder, ballots and the
regular books and records of the Corporation, and they may also consider other
reliable information for the limited purposes of reconciling proxies and ballots
submitted by or on behalf of banks, brokers, their nominees or similar persons
that represent more votes than the holder of a proxy is authorized by the record
owner to cast or more votes than the stockholder holds of record. If the
inspectors consider other reliable information for such purpose, they shall, at
the time they make their certification, specify the precise information
considered by them, including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
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3. Directors
3.1. Powers
The business and affairs of the Corporation shall be managed by or
under the direction of the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things, subject to any limitation
set forth in the Certificate of Incorporation or as otherwise may be provided in
the Delaware General Corporation Law.
3.2. Number and Election
The number of directors constituting the entire Board shall be not
less than three nor more than 15. The exact number of directors shall be set
within these limits from time to time by a resolution approved by not less than
two-thirds of the number of directors constituting the entire Board. Unless the
Certificate of Incorporation provides otherwise, the directorships (i.e., the
particular seats on the Board) shall be classified into three classes
(designated as Class I, Class II and Class III) as nearly equal in number as
possible.
The directors shall be elected at the annual meetings of the
stockholders, except as provided in Section 3.3 hereof, and each director
elected shall hold office until such director's successor is elected and
qualified or until the director's earlier death, resignation or removal.
Directors need not be stockholders.
3.3. Vacancies; Resignation
Vacancies and newly created directorships resulting from any increase
in the number of directors on the Board may be filled only by the affirmative
vote of a majority of the directors then in office, even if less than a quorum,
or by a sole remaining director. Whenever the holders of any class or classes of
stock or series thereof are entitled to elect one or more directors by the
provisions of the Certificate of Incorporation, vacancies and newly created
directorships of such class or classes or series may be filled by the
affirmative vote of a majority of the directors elected by such class or classes
or series thereof then in office, or by a sole remaining director so elected.
Each director so chosen shall hold office until the next annual meeting of
stockholders at which the terms of the other directors of the same class expire,
and until such director's successor is elected and qualified, or until the
director's earlier death, resignation or removal.
A director may resign at any time upon written notice to the
Corporation, and the resignation shall take effect at the time it specifies,
without any need for acceptance by the Board. In the event that one or more
directors resigns from the Board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or
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vacancies, with the vote thereon to take effect when such resignation or
resignations becomes effective.
3.4. Meetings
3.4.1. Regular Meetings
Regular meetings of the Board may be held without notice at such time
and at such place as shall from time to time be determined by the Board.
3.4.2. Special Meetings
Special meetings of the Board may be called by the Chairperson, the
Chief Executive Officer or the President on one day's notice to each director,
either personally or by telephone, express delivery service (so that the
scheduled delivery date of the notice is at least one day in advance of the
meeting), telegram or facsimile transmission, and on five days' notice by mail
(effective upon deposit of such notice in the mail). The notice need not
describe the purpose of a special meeting.
3.4.3. Telephone Meetings
Members of the Board may participate in a meeting of the Board by any
communication by means of which all participating directors can simultaneously
hear each other during the meeting. A director participating in a meeting by
this means is deemed to be present in person at the meeting.
3.4.4. Action Without Meeting
Any action required or permitted to be taken at any meeting of the
Board may be taken without a meeting if the action is taken by all members of
the Board. The action must be evidenced by one or more written consents
describing the action taken, signed by each director, and delivered to the
Corporation for inclusion in the minute book.
3.4.5. Waiver of Notice of Meeting
A director may waive any notice required by statute, the Certificate
of Incorporation or these Bylaws before or after the date and time stated in the
notice. Except as set forth below, the waiver must be in writing, signed by the
director entitled to the notice, and delivered to the Corporation for inclusion
in the minute book. Notwithstanding the foregoing, a director's attendance at or
participation in a meeting waives any required notice to the director of the
meeting unless the director at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
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3.5. Quorum and Vote at Meetings
At all meetings of the Board, a quorum of the Board consists of a
majority of the total number of directors comprising the full Board as
established pursuant to Section 3.2 of these Bylaws. The vote of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board, except as may be otherwise specifically provided by statute or by
the Certificate of Incorporation or by these Bylaws.
3.6. Committees of Directors
The Board may designate one or more committees, each committee to
consist of one or more directors. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. If a member of a committee
shall be absent from any meeting, or disqualified from voting thereat, the
remaining member or members present and not disqualified from voting, whether or
not such member or members constitute a quorum, may, by unanimous vote, appoint
another member of the Board to act at the meeting in the place of such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers that may require it; but no such committee shall have the power or
authority in reference to approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or adopting,
amending or repealing any Bylaw of the Corporation; and unless the resolution
designating the committee, these Bylaws or the Certificate of Incorporation
expressly so provide, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock, or to adopt a
certificate of ownership and merger pursuant to Section 253 of the Delaware
General Corporation Law. Such committee or committees shall have such name or
names as may be determined from time to time by resolution adopted by the Board.
Each committee shall keep regular minutes of its meetings and report the same to
the Board, when required. Unless otherwise specified in the Board resolution
appointing the Committee, all provisions of the Delaware General Corporation Law
and these Bylaws relating to meetings, action without meetings, notice (and
waiver thereof), and quorum and voting requirements of the Board apply, as well,
to such committees and their members.
3.7. Compensation of Directors
The Board shall have the authority to fix the compensation of
directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
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4. Officers
4.1. Positions
The officers of the Corporation shall be a Chairperson, a Chief
Executive Officer, a President, a Chief Operating Officer, a Chief Financial
Officer, a Treasurer, and a Secretary, and such other officers as the Board (or
an officer authorized by the Board) from time to time may appoint, including one
or more Vice Chairpersons, Executive Vice Presidents, Senior Vice Presidents,
Vice Presidents, Assistant Secretaries and Assistant Treasurers. Each such
officer shall exercise such powers and perform such duties as shall be set forth
below and such other powers and duties as from time to time may be specified by
the Board or by any officer(s) authorized by the Board to prescribe the duties
of such other officers. Any number of offices may be held by the same person,
except that in no event shall the President and the Secretary be the same
person. Each of the Chairperson, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer and/or any Vice President may execute
bonds, mortgages, contracts, and other instruments and documents under the seal
of the Corporation, if required, except where required or permitted by law to be
otherwise executed and except where the execution thereof shall be expressly
delegated by the Board to some other officer or agent of the Corporation.
4.2. Chairperson
The Chairperson shall (when present and unless otherwise provided by
resolution of the Board or delegated by the Chairperson) preside at all meetings
of the Board and stockholders, and shall ensure that all orders and resolutions
of the Board and stockholders are carried into effect.
4.3. Chief Executive Officer
The Chief Executive Officer of the Corporation shall see that all
orders and resolutions of the Board are carried into effect and shall oversee
the strategic planning and policy development of the Corporation. The Chief
Executive Officer shall have the authority to execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required by law to be otherwise signed and executed and except where the signing
and execution thereof shall be expressly delegated by the Board to some other
officer or agent of the Corporation. The Chief Executive Officer shall perform
other duties commonly incident to this office and shall perform such other
duties and have such other powers as the Board may from time to time prescribe.
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4.4. President
The President shall have general supervision of the business of the
Corporation. In the event the position of Chairperson shall not be occupied or
the Chairperson shall be absent or otherwise unable to act, the President shall
preside at meetings of the stockholders and directors and shall discharge the
duties of the presiding officer. The President shall have the authority to
execute bonds, mortgages and other contracts requiring a seal under the seal of
the Corporation, except where required by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly
delegated by the Board to some other officer or agent of the Corporation. The
President shall perform whatever duties the Board may from time to time
prescribe.
4.5. Chief Operating Officer
The Board may designate a Chief Operating Officer who shall have such
responsibilities and duties as are assigned by the Chief Executive Officer, the
President, the Board or the Executive Committee (if any).
4.6. Chief Financial Officer
The Board may designate a Chief Financial Officer who shall have such
responsibilities and duties as are assigned by the Chief Executive Officer, the
President, the Board or the Executive Committee (if any). Such responsibilities
may include all responsibilities assumed by the Treasurer, and may also include
the management of any and all Treasurers and Assistant Treasurers.
4.7. Executive Vice President
The Board may designate one or more Executive Vice Presidents who
shall have such responsibilities and duties as are assigned by the Chief
Executive Officer, the President, the Board or the Executive Committee (if any).
The responsibilities of any such Executive Vice President may include all
responsibilities assumed by any Senior Vice President or Vice President, and may
also include the management of any and all Senior Vice Presidents and Vice
Presidents.
4.8. Senior Vice President
The Board may designate one or more Senior Vice Presidents who shall
have such responsibilities and duties as are assigned by the Chief Executive
Officer, the President, the Board or the Executive Committee (if any). The
responsibilities
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of any such Senior Vice President may include all responsibilities assumed by
any Vice President, and may also include the management of any and all Vice
Presidents.
4.9. Vice Presidents
In the absence of the Chief Executive Officer and the President, or in
the event of the inability or refusal to act by the Chief Executive Officer and
the President, the Vice President (or in the event there is more than one Vice
President, the Vice Presidents in the order designated, or in the absence of any
designation, then in the order of their election) shall perform the duties of
the President, and when so acting shall have all the powers of, and be subject
to all the restrictions upon, the President. Unless the order is otherwise
designated, (i) the Chief Operating Officer shall come in order before any
Executive Vice President, Senior Vice President and any Vice President and (ii)
the Chief Operating Officer, any Executive Vice President and Senior Vice
President shall come in order before any Vice President.
4.10. Secretary
The Secretary shall have responsibility for preparation of minutes of
meetings of the Board and of the stockholders and for authenticating records of
the Corporation. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board. The Secretary or
an Assistant Secretary may also attest all instruments signed by any other
officer of the Corporation.
4.11. Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant
Secretaries in the order determined by the Board (or if there shall have been no
such determination, then in the order of their election), shall, in the absence
of the Secretary or in the event of the Secretary's inability or refusal to act,
perform the duties and exercise the powers of the Secretary.
4.12. Treasurer
The Treasurer, if one is appointed, shall have responsibility for the
custody of the corporate funds and securities and shall see to it that full and
accurate accounts of receipts and disbursements are kept in books belonging to
the Corporation. The Treasurer, if one is appointed, shall render to the
Chairperson, the Chief Executive Officer, the President, the Chief Financial
Officer, and the Board, upon request, an account of all financial transactions
and of the financial condition of the Corporation.
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4.13. Assistant Treasurer
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability or
refusal to act, perform the duties and exercise the powers of the Treasurer.
4.14. Term of Office
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Board.
4.15. Compensation
The compensation of officers of the Corporation shall be fixed by the
Board or by any officer(s) authorized by the Board to prescribe the compensation
of such other officers.
4.16. Fidelity Bonds
The Corporation may secure the fidelity of any or all of its officers
or agents by bond or otherwise.
5. Capital Stock
5.1. Certificates of Stock; Uncertificated Shares
The shares of the Corporation shall be represented by certificates,
provided that the Board may provide by resolution that some or all of any or all
classes or series of the Corporation's stock shall be uncertificated shares. Any
such resolution shall not apply to shares represented by a certificate until the
certificate is surrendered to the Corporation. Notwithstanding the adoption of
such a resolution by the Board, every holder of stock represented by
certificates, and upon request every holder of uncertificated shares, shall be
entitled to have a certificate (representing the number of shares registered in
certificate form) signed in the name of the Corporation by the Chairperson, the
President, or any Vice President, and by the Treasurer, Secretary or any
Assistant Treasurer or Assistant Secretary of the Corporation. Any or all the
signatures on the certificate may be facsimile. In case any officer, transfer
agent or registrar whose signature or facsimile signature appears on a
certificate shall have ceased to be such officer, transfer agent or
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registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
5.2. Lost Certificates
The Board, Chairperson, Chief Executive Officer, President or
Secretary may direct a new certificate of stock to be issued in place of any
certificate theretofore issued by the Corporation and alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming that the certificate of stock has been lost, stolen or destroyed. When
authorizing such issuance of a new certificate, the Board or any such officer
may, as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or such owner's legal
representative, to advertise the same in such manner as the Board or such
officer shall require and/or to give the Corporation a bond or indemnity, in
such sum or on such terms and conditions as the Board or such officer may
direct, as indemnity against any claim that may be made against the Corporation
on account of the certificate alleged to have been lost, stolen or destroyed or
on account of the issuance of such new certificate or uncertificated shares.
5.3. Record Date
5.3.1. Actions by Stockholders
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall not be more than 60 days nor less than ten days before the date of such
meeting. If no record date is fixed by the Board, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be 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, unless the Board
fixes a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, the Board may fix a
record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board, and which record date
shall not be more than ten days after the date upon which the resolution fixing
the record date is adopted by the Board. If no record date has been fixed by the
Board, the record date for determining stockholders entitled to consent to
corporate action in writing
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without a meeting, when no prior action by the Board is required by the Delaware
General Corporation 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 prescribed by Section 213(b) of the Delaware
General Corporation Law. If no record date has been fixed by the Board and prior
action by the Board is required by the Delaware General Corporation 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 adopts the resolution taking such prior action.
5.3.2. Payments
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 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 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 adopts the
resolution relating thereto.
5.4. Stockholders 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, to
receive notifications, to vote as such owner, and to exercise all the rights and
powers of an owner. The Corporation 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 may be provided by the Delaware General Corporation Law.
6. INDEMNIFICATION; INSURANCE
6.1. Authorization of Indemnification
Each person who was or is a party or is threatened to be made a party
to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
by or in the right of the Corporation or otherwise (a "proceeding"), by reason
of the fact that he or she is or was a director or officer of the Corporation or
is or was serving at the request of the Corporation as a director or officer of
another corporation or of a partnership, joint venture, limited liability
company, trust or other enterprise, including service with respect to an
employee benefit plan, shall be (and shall be
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deemed to have a contractual right to be) indemnified and held harmless by the
Corporation (and any successor to the Corporation by merger or otherwise) to the
fullest extent authorized by, and subject to the conditions and (except as
provided herein) procedures set forth in, the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but any such amendment shall not
be deemed to limit or prohibit the rights of indemnification hereunder for past
acts or omissions of any such person insofar as such amendment limits or
prohibits the indemnification rights that said law permitted the Corporation to
provide prior to such amendment), against all expenses, liabilities and losses
(including attorneys' fees, judgments, fines, ERISA taxes or penalties and
amounts paid or to be paid in settlement) actually and reasonably incurred or
suffered by such person in connection therewith if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
proceeding, had no reasonable cause to believe such person's conduct was
unlawful; provided, however, that the Corporation shall indemnify any such
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person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person (except for a suit or action pursuant to Section 6.2
hereof) only if such proceeding (or part thereof) was authorized by the Board.
Persons who are not directors or officers of the Corporation and are not so
serving at the request of the Corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the Board. The
indemnification conferred in this Section 6.1 also shall include the right to be
paid by the Corporation (and such successor) the expenses (including attorneys'
fees) incurred in the defense of or other involvement in any such proceeding in
advance of its final disposition; provided, however, that if and to the extent
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the Delaware General Corporation Law requires, the payment of such expenses
(including attorneys' fees) incurred by a director or officer in advance of the
final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so paid in advance if it shall ultimately be determined that
such director or officer is not entitled to be indemnified under this Section
6.1 or otherwise; and provided further, that, such expenses incurred by other
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employees and agents may be so paid in advance upon such terms and conditions,
if any, as the Board deems appropriate.
6.2. Right of Claimant to Bring Action Against the Corporation
If a claim under Section 6.1 is not paid in full by the Corporation
within 60 days after a written claim has been received by the Corporation, the
claimant may at any time thereafter bring an action against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in part,
the claimant shall be entitled to be paid also the expense of prosecuting such
action. It shall be a defense to any such action (other than an action brought
to enforce a claim for expenses incurred in connection with any proceeding in
advance of its final disposition where the required undertaking, if any is
required, has been
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tendered to the Corporation) that the claimant has not met the standards of
conduct that make it permissible under the Delaware General Corporation Law for
the Corporation to indemnify the claimant for the amount claimed or is otherwise
not entitled to indemnification under Section 6.1, but the burden of proving
such defense shall be on the Corporation. The failure of the Corporation to have
made a determination (in the manner provided under the Delaware General
Corporation Law) prior to or after the commencement of such action that
indemnification of the claimant is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in the Delaware General
Corporation Law shall not be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct. Unless
otherwise specified in an agreement with the claimant, an actual determination
by the Corporation (in the manner provided under the Delaware General
Corporation Law) after the commencement of such action that the claimant has not
met such applicable standard of conduct shall not be a defense to the action,
but shall create a presumption that the claimant has not met the applicable
standard of conduct.
6.3. Non-exclusivity
The rights to indemnification and advance payment of expenses provided
by Section 6.1 hereof shall not be deemed exclusive of any other rights to which
those seeking indemnification and advance payment of expenses may be entitled
under any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office.
6.4. Survival of Indemnification
The indemnification and advance payment of expenses and rights thereto
provided by, or granted pursuant to, Section 6.1 hereof shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee, partner or agent and shall inure to the
benefit of the personal representatives, heirs, executors and administrators of
such person.
6.5. Insurance
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, against any liability asserted against such person or
incurred by such person in any such capacity, or arising out of such person's
status as such, and related expenses,
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whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of the Delaware General Corporation
Law.
7. General Provisions
7.1. Inspection of Books and Records
Any stockholder, in person or by attorney or other agent, shall, upon
written demand under oath stating the purpose thereof, have the right during the
usual hours for business to inspect for any proper purpose the Corporation's
stock ledger, a list of its stockholders, and its other books and records, and
to make copies or extracts therefrom. A proper purpose shall mean a purpose
reasonably related to such person's interest as a stockholder. In every instance
where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or other agent to so act on
behalf of the stockholder. The demand under oath shall be directed to the
Corporation at its registered office or at its principal place of business.
7.2. Dividends
The Board may declare dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation and
the laws of the State of Delaware.
7.3. Reserves
The directors of the Corporation may set apart, out of the funds of
the Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
7.4. Execution of Instruments
All checks, drafts or other orders for the payment of money, and
promissory notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board may from time to time designate.
7.5. Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the
Board.
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7.6. Seal
The corporate seal shall be in such form as the Board shall approve.
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or otherwise reproduced.
* * * * *
The foregoing Bylaws were adopted by the Board on December , 1999 to
be effective as of the closing of the Corporation's initial public offering of
shares of common stock.
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Secretary
