BYLAWS
Published on January 26, 1998
EXHIBIT 3.2
BYLAWS
OF
QUANTA SERVICES, INC.
TABLE OF CONTENTS
BYLAWS
OF
QUANTA SERVICES, INC.
ARTICLE I
OFFICES
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Section 1.1. Registered Office. The registered office and registered
agent of Quanta Services, Inc. (the "Corporation") required to be maintained in
the State of Delaware by the General Corporation Law of the State of Delaware
(the "DGCL"), will be as from time to time set forth in the Corporation's
Certificate of Incorporation (as may be amended from time to time) or in any
certificate filed with the Secretary of State of the State of Delaware, and the
appropriate county Recorder or Recorders, as the case may be, to amend such
information.
Section 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 may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
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Section 2.1. Place of Meetings. All meetings of the stockholders for
the election of Directors will be held at such place, within or without the
State of Delaware, as may be fixed from time to time by the Board of Directors.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as may be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2.2. Annual Meeting. An annual meeting of the stockholders will
be held at such time as may be determined by the Board of Directors, at which
meeting the stockholders will elect a Board of Directors, and transact such
other business as may properly be brought before the meeting.
Section 2.3. List of Stockholders. At least ten days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
said meeting, arranged in alphabetical order, with the address of and the number
of voting shares registered in the name of each, will be prepared by the officer
or agent having charge of the stock transfer books. Such list will 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 within the city where the meeting is to be held,
which place will be specified in the notice of the meeting, or if not so
specified at the place where the meeting is to be held. Such list will be
produced and kept open at the time
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and place of the meeting during the whole time thereof, and will be subject to
the inspection of any stockholder who may be present.
Section 2.4. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by law, the Certificate
of Incorporation or these Bylaws, may be called by the Chairman of the Board,
the Chief Executive Officer or the Board of Directors. Business transacted at
all special meetings will be confined to the purposes stated in the notice of
the meeting unless all stockholders entitled to vote are present and consent.
Except to the extent specified in the Certificate of Incorporation or the
resolutions of the Board of Directors creating any class or series of preferred
stock of the Corporation, stockholders of the Corporation may not call a special
meeting.
Section 2.5. Notice. Written or printed notice stating the place, day
and hour of any meeting of the stockholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called, will be delivered not
less than ten nor more than sixty days before the date of the meeting, either
personally or by mail, by or at the direction of the Chairman of the Board, the
Chief Executive Officer, the Secretary, or the officer or person calling the
meeting, to each stockholder of record entitled to vote at the meeting. If
mailed, such notice will be deemed to be delivered when deposited in the United
States mail, addressed to the stockholder at his address as it appears on the
stock transfer books of the Corporation, with postage thereon prepaid.
Section 2.6. Quorum. At all meetings of the stockholders, the presence
in person or by proxy of the holders of a majority of the shares issued and
outstanding and entitled to vote will be necessary and sufficient to constitute
a quorum for the transaction of business except as otherwise provided by law,
the Certificate of Incorporation or these Bylaws. If, however, such quorum is
not present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, will have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present or represented. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting will
be given to each stockholder of record entitled to vote at the meeting. At such
adjourned meeting at which a quorum is present or represented, any business may
be transacted that might have been transacted at the meeting as originally
notified.
Section 2.7. Voting. When a quorum is present at any meeting of the
Corporation's stockholders, the vote of the holders of a majority of the shares
entitled to vote on, and voted for or against, any matter will decide any
questions brought before such meeting, unless the question is one upon which, by
express provision of law, the Certificate of Incorporation or these Bylaws, a
different vote is required, in which case such express provision will govern and
control the decision of such question. The stockholders present in person or by
proxy at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 2.8. Method of Voting. Each outstanding share of the
Corporation's capital stock, regardless of class, will be entitled to one vote
on each matter submitted to a vote at a meeting of
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stockholders, except to the extent that the voting rights of the shares of any
class or classes are limited or denied by the Certificate of Incorporation, as
amended from time to time. At any meeting of the stockholders, every stockholder
having the right to vote will be entitled to vote in person, or by proxy
appointed by an instrument in writing subscribed by such stockholder and bearing
a date not more than three years prior to such meeting, unless such instrument
provides for a longer period. Each proxy will be revocable unless expressly
provided therein to be irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A proxy may
be made irrevocable regardless of whether the interest with which it is coupled
is an interest in the stock itself or an interest in the Corporation generally.
Such proxy will be filed with the Secretary of the Corporation prior to or at
the time of the meeting. Voting on any question or in any election, other than
for directors, may be by voice vote or show of hands unless the presiding
officer orders, or any stockholder demands, that voting be by written ballot.
Section 2.9. Record Date. The Board of Directors may fix in advance a
record date for the purpose of determining stockholders entitled to notice of or
to vote at a meeting of stockholders, which record date will not precede the
date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date will not be less than ten nor more than sixty
days prior to such meeting. In the absence of any action by the Board of
Directors, the close of business on the date next preceding the day on which the
notice is given will be the record date, or, if notice is waived, the close of
business on the day next preceding the day on which the meeting is held will be
the record date.
Section 2.10. Action by Consent. Except as set forth below, any action
required or permitted by law, the Certificate of Incorporation or these Bylaws
to be taken at a meeting of the stockholders of the Corporation may be taken
without a meeting if a consent or consents in writing, setting forth the action
so taken, is signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and will be delivered to the Corporation by delivery to its registered office in
Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the minute book. Notwithstanding the foregoing,
from and after the first date that the Corporation has received funding from the
sale of capital stock of the Corporation in an initial public offering any
action required or permitted to be taken by the stockholders of the Corporation
must be effected at an annual or special meeting of the stockholders of the
Corporation and may not be effected by any consent in writing by the
stockholders.
Section 2.11. Stockholder Proposals. No proposal by a stockholder made
pursuant to this Article II may be voted upon at a meeting of stockholders
unless such stockholder shall have delivered or mailed in a timely manner (as
set herein) and in writing to the Secretary of the Corporation (i) notice of
such proposal, (ii) the text of the proposed alteration, amendment or repeal, if
such proposal relates to a proposed change to the Corporation's Certificate of
Incorporation or Bylaws, or the text of such proposal for adoption and any
supporting statement (which shall not exceed 500 words in length), (iii)
evidence reasonably satisfactory to the Secretary of the Corporation of such
stockholder's status as such and of the number of shares of each class of
capital stock of the Corporation of which such stockholder is the beneficial
owner, (iv) a list of the names and addresses of other beneficial owners of
shares of the capital stock of the Corporation, if any, with
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whom such stockholder is acting in concert, and the number of shares of each
class of capital stock of the Corporation beneficially owned by each such
beneficial owner and (v) an opinion of counsel, which counsel and the form and
substance of which opinion shall be reasonably satisfactory to the Board of
Directors of the Corporation, to the effect that the Certificate of
Incorporation or Bylaws resulting from the adoption of such proposal would not
be in conflict with the laws of the State of Delaware, if such proposal relates
to a proposed change to the Corporation's Certificate of Incorporation or
Bylaws. To be timely in connection with an annual meeting of stockholders, a
stockholder's notice and other aforesaid items shall be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
ninety nor more than 180 days prior to the earlier of the date of the meeting or
the corresponding date on which the immediately preceding year's annual meeting
of stockholders was held (PROVIDED, HOWEVER, that if no annual meeting was held
in the previous year or the date of the annual meeting of stockholders has been
changed by more than 30 calendar days from the date contemplated at the time of
the previous year's proxy statement, the notice must be received by the
Corporation at least 45 days prior to the date the Corporation intends to
distribute its proxy statement with respect to such meeting). To be timely in
connection with the voting on any such proposal at a special meeting of the
stockholders, a stockholder's notice and other aforesaid items shall be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than forty days nor more than sixty days prior to the date
of such meeting; provided, however, that in the event that less than fifty days'
notice or prior public disclosure of the date of the special meeting of the
stockholders is given or made to the stockholders, such stockholder's notice and
other aforesaid items to be timely must be so received not later than the close
of business on the seventh day following the day on which such notice of date of
the meeting was mailed or such public disclosure was made. Within thirty days
(or such shorter period that may exist prior to the date of the meeting) after
such stockholder shall have submitted the aforesaid items, the Secretary and the
Board of Directors of the Corporation shall respectively determine whether the
items to be ruled upon by them are reasonably satisfactory and shall notify such
stockholder in writing of their respective determinations. If such stockholder
fails to submit a required item in the form or within the time indicated, or if
the Secretary or the Board of Directors of the Corporation determines that the
items to be ruled upon by them are not reasonably satisfactory, then such
proposal by such stockholder may not be voted upon by the stockholders of the
Corporation at such meeting of stockholders. The presiding person at each
meeting of stockholders shall, if the facts warrant, determine and declare to
the meeting that a proposal was not made in accordance with the procedure
prescribed by these Bylaws, and if he should so determine, he shall so declare
to the meeting and the defective proposal shall be disregarded. The requirements
of this Section 2.11 shall be in addition to any other requirements imposed by
these Bylaws, by the Corporation's Certificate of Incorporation or the law.
Section 2.12. Nomination of Directors. Nominations for the election of
directors may be made by the Board of Directors or by any stockholder (a
"Nominator") entitled to vote in the election of directors. Such nominations,
other than those made by the Board of Directors, shall be made in writing
pursuant to timely notice delivered to or mailed and received by the Secretary
of the Corporation as set forth in this Section 2.12. To be timely in connection
with an annual meeting of stockholders, a Nominator's notice, setting forth the
name and address of the person to be nominated, shall be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
ninety days nor more than 180 days prior to the earlier of the date of the
meeting or the
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corresponding date on which the immediately preceding year's annual meeting of
stockholders was held. To be timely in connection with any election of a
director at a special meeting of the stockholders, a Nominator's notice, setting
forth the name and address of the person to be nominated, shall be delivered to
or mailed and received at the principal executive offices of the Corporation not
later than the close of business on the tenth day following the day on which
such notice of date of the meeting was mailed or such public disclosure was
made, whichever first occurs. At such time, the Nominator shall also submit
written evidence, reasonably satisfactory to the Secretary of the Corporation,
that the Nominator is a stockholder of the Corporation and shall identify in
writing (i) the name and address of the Nominator, (ii) the number of shares of
each class of capital stock of the Corporation of which the Nominator is the
beneficial owner, (iii) the name and address of each of the persons with whom
the Nominator is acting in concert and (iv) the number of shares of capital
stock of which each such person with whom the Nominator is acting in concert is
the beneficial owner pursuant to which the nomination or nominations are to be
made. At such time, the Nominator shall also submit in writing (i) the
information with respect to each such proposed nominee that would be required to
be provided in a proxy statement prepared in accordance with Regulation 14A
under the Securities Exchange Act of 1934, as amended, and (ii) a notarized
affidavit executed by each such proposed nominee to the effect that, if elected
as a member of the Board of Directors, he will serve and that he is eligible for
election as a member of the Board of Directors. Within thirty days (or such
shorter time period that may exist prior to the date of the meeting) after the
Nominator has submitted the aforesaid items to the Secretary of the Corporation,
the Secretary of the Corporation shall determine whether the evidence of the
Nominator's status as a stockholder submitted by the Nominator is reasonably
satisfactory and shall notify the Nominator in writing of his determination. If
the Secretary of the Corporation finds that such evidence is not reasonably
satisfactory, or if the Nominator fails to submit the requisite information in
the form or within the time indicated, such nomination shall be ineffective for
the election at the meeting at which such person is proposed to be nominated.
The presiding person at each meeting of stockholders shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by these bylaws, and if he should so
determine, he shall so declare to the meeting and the defective nomination shall
be disregarded. The requirements of this Section 2.12 shall be in addition to
any other requirements imposed by these bylaws, by the Certificate of
Incorporation or by law.
Section 2.13. Inspectors of Election. Before any meeting of
stockholders, the Board of Directors may, and if required by law shall, appoint
one or more persons to act as inspectors of election at such meeting or any
adjournment thereof. If any person appointed as inspector fails to appear or
fails or refuses to act, the chairman of the meeting may, and if required by law
or requested by any stockholder entitled to vote or his proxy shall, appoint a
substitute inspector. If no inspectors are appointed by the Board of Directors,
the chairman of the meeting may, and if required by law or requested by any
stockholder entitled to vote or his proxy shall, appoint one or more inspectors
at the meeting. Notwithstanding the foregoing, inspectors shall be appointed
consistent with Section 231 of the DGCL. Inspectors may include individuals who
serve the Corporation in other capacities (including as officers, employees,
agents or representatives); PROVIDED, HOWEVER, that no Director or candidate for
the office of Director shall act as an inspector. Inspectors need not be
stockholders. The inspectors shall (i) determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number of
shares represented at the
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meeting, the existence of a quorum and the validity and effect of proxies and
(ii) receive votes or ballots, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes and
ballots, determine the results and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. On request of the chairman
of the meeting, the inspectors shall make a report in writing of any challenge,
request or matter determined by them and shall execute a certificate of any fact
found by them. The inspectors shall have such other duties as may be prescribed
by Section 231 of the DGCL.
ARTICLE III
BOARD OF DIRECTORS
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Section 3.1. Management. The business and affairs of the Corporation
will be managed by or under the direction of its Board of Directors who may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law, by the Certificate of Incorporation or by these Bylaws
directed or required to be exercised or done by the stockholders.
Section 3.2. Qualification; Election; Term. None of the Directors need
be a stockholder of the Corporation or a resident of the State of Delaware.
Directors shall be elected at the annual meeting of the stockholders and each
director shall be elected to serve until his successor shall be elected and
shall qualify. Directors shall be elected by a plurality of the votes of the
shares present in person or represented by proxy and entitled to vote on the
election of Directors at any annual or special meeting of stockholders. Such
election shall be by written ballot.
Section 3.3. Number. The number of Directors of the Corporation will be
at least one and not more than nineteen. The number of Directors authorized
will be fixed as the Board of Directors may from time to time designate, or if
no such designation has been made, the number of Directors will be the same as
the number of members of the initial Board of Directors as set forth in the
Certificate of Incorporation.
Section 3.4. Removal. Any Director may be removed, only for cause, at
any special meeting of stockholders by the affirmative vote of the holders of a
majority in number of all outstanding voting stock entitled to vote; provided
that notice of the intention to act upon such matter has been given in the
notice calling such meeting.
Section 3.5. Vacancies. Newly created directorships resulting from any
increase in the authorized number of Directors and any vacancies occurring in
the Board of Directors caused by death, resignation, retirement,
disqualification or removal from office of any Directors or otherwise, may be
filled by the vote of a majority of the Directors then in office, though less
than a quorum, or a successor or successors may be chosen at a special meeting
of the stockholders called for that purpose, and each successor Director so
chosen will hold office until whichever of the following occurs first: his
successor is elected and qualified, his resignation, his removal from office by
the stockholders or his death.
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Section 3.6. Place of Meetings. Meetings of the Board of Directors,
regular or special, may be held at such place within or without the State of
Delaware as may be fixed from time to time by the Board of Directors.
Section 3.7. Annual Meeting. The first meeting of each newly elected
Board of Directors will be held without further notice immediately following the
annual meeting of stockholders and at the same place, unless by unanimous
consent, the Directors then elected and serving change such time or place.
Section 3.8. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice at such time and place as is from time to
time determined by resolution of the Board of Directors.
Section 3.9. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the Chief Executive
Officer on oral or written notice to each Director, given either personally, by
telephone, by telegram or by mail; special meetings will be called by the
Chairman of the Board, Chief Executive Officer, or Secretary in like manner and
on like notice on the written request of at least three Directors. The purpose
or purposes of any special meeting will be specified in the notice relating
thereto.
Section 3.10. Quorum. At all meetings of the Board of Directors the
presence of a majority of the number of Directors fixed by these Bylaws will be
necessary and sufficient to constitute a quorum for the transaction of business,
and the affirmative vote of at least a majority of the Directors present at any
meeting at which there is a quorum will be the act of the Board of Directors,
except as may be otherwise specifically provided by law, the Certificate of
Incorporation or these Bylaws. If a quorum is not present at any meeting of the
Board of Directors, the Directors present thereat may adjourn the meeting from
time to time without notice other than announcement at the meeting, until a
quorum is present.
Section 3.11. Interested Directors. No contract or transaction between
the Corporation and one or more of its Directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of the Corporation's Directors or officers are
directors or officers or have a financial interest, will be void or voidable
solely for this reason, solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof that
authorizes the contract or transaction, or solely because his or their votes are
counted for such purpose, if: (i) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee in
good faith authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested Directors, even though the disinterested Directors
be less than a quorum, (ii) the material facts as to his relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified by the Board of Directors, a committee thereof
or the stockholders.
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Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee that authorizes
the contract or transaction.
Section 3.12. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board, designate committees, each committee
to consist of two or more Directors of the Corporation, which committees will
have such power and authority and will perform such functions as may be provided
in such resolution. Such committee or committees will have such name or names
as may be designated by the Board and will keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
Section 3.13. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee of the Board of
Directors may be taken without such a meeting if a consent or consents in
writing, setting forth the action so taken, is signed by all the members of the
Board of Directors or such committee, as the case may be.
Section 3.14. Compensation of Directors. Directors will receive such
compensation for their services and reimbursement for their expenses as the
Board of Directors, by resolution, may establish; provided that nothing herein
contained will be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
NOTICE
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Section 4.1. Form of Notice. Whenever by law, the Certificate of
Incorporation or of these Bylaws, notice is to be given to any Director or
stockholder, and no provision is made as to how such notice will be given, such
notice may be given in writing, by mail, postage prepaid, addressed to such
Director or stockholder at such address as appears on the books of the
Corporation. Any notice required or permitted to be given by mail will be
deemed to be given at the time the same is deposited in the United States mails.
Section 4.2. Waiver. Whenever any notice is required to be given to any
stockholder or Director of the Corporation as required by law, the Certificate
of Incorporation or these Bylaws, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated in such notice, will be equivalent to the giving of such notice.
Attendance of a stockholder or Director at a meeting will constitute a waiver of
notice of such meeting, except where such stockholder or Director attends for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened.
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ARTICLE V
OFFICERS AND AGENTS
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Section 5.1. In General. The officers of the Corporation will consist of
a Chief Executive Officer, Chief Financial Officer and Secretary and such other
officers as shall be elected by the Board of Directors or appointed by the Chief
Executive Officer (except the Board of Directors alone shall have authority to
elect a Chief Executive Officer). Any two or more offices may be held by the
same person.
Section 5.2. Election. The Board of Directors, at its first meeting
after each annual meeting of stockholders, will elect the officers, none of whom
need be a member of the Board of Directors.
Section 5.3. Other Officers and Agents. Except as set forth in Section
5.1 hereof, the Board of Directors and Chief Executive Officer may also elect
and appoint such other officers and agents as it or he deems necessary, who will
be elected and appointed for such terms and will exercise such powers and
perform such duties as may be determined from time to time by the Board or the
Chief Executive Officer.
Section 5.4. Compensation. The compensation of all officers and agents
of the Corporation will be fixed by the Board of Directors or any committee of
the Board, if so authorized by the Board.
Section 5.5. Term of Office and Removal. Each officer of the
Corporation will hold office until his death, his resignation or removal from
office, or the election and qualification of his successor, whichever occurs
first. Any officer or agent elected or appointed by the Board of Directors or
the Chief Executive Officer may be removed at any time, for or without cause, by
the affirmative vote of a majority of the entire Board of Directors or at the
discretion of the Chief Executive Officer (without regard to how the agent or
officer was elected), but such removal will not prejudice the contract rights,
if any, of the person so removed. If the office of any officer becomes vacant
for any reason, the vacancy may be filled by the Board of Directors or, in the
case of a vacancy in the office of officer other than Chief Executive Officer
and Chief Operating Officer, such vacancy may be filled by the Chief Executive
Officer.
Section 5.6. Employment and Other Contracts. The Board of Directors may
authorize any officer or officers or agent or agents to enter into any contract
or execute and deliver any instrument in the name or on behalf of the
Corporation, and such authority may be general or confined to specific
instances. The Board of Directors may, when it believes the interest of the
Corporation will best be served thereby, authorize executive employment
contracts that will have terms no longer than ten years and contain such other
terms and conditions as the Board of Directors deems appropriate. Nothing herein
will limit the authority of the Board of Directors to authorize employment
contracts for shorter terms.
Section 5.7. Chairman of the Board of Directors. If the Board of
Directors has elected a Chairman of the Board, he will preside at all meetings
of the stockholders and the Board of Directors. In addition, the Chairman of the
Board shall perform whatever duties and shall exercise all powers that are given
to him by the Board of Directors.
Section 5.8. Chief Executive Officer. The Chief Executive Officer will
be the chief executive officer of the Corporation and, subject to the control of
the Board of Directors, will
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supervise and control all of the business and affairs of the Corporation. The
Chief Executive Officer shall have the authority to elect any officer of the
Corporation other than the Chief Executive Officer or President. He will, in the
absence of the Chairman of the Board, preside at all meetings of the
stockholders and the Board of Directors. The Chief Executive Officer will have
all powers and perform all duties incident to the office of Chief Executive
Officer and will have such other powers and perform such other duties as the
Board of Directors may from time to time prescribe. During the absence or
disability of the President, or if no President shall be elected, the Chief
Executive Officer will exercise the powers and perform the duties of President.
Section 5.9. Chief Operating Officer. The Chief Operating Officer, if
one shall be elected, will have responsibility for oversight of the
Corporation's operating and development activities. In the absence or
disability of the Chief Executive Officer and the Chairman of the Board, the
Chief Operating Officer will exercise the powers and perform the duties of the
Chief Executive Officer. The Chief Operating Officer will render to the
Directors whenever they may require it an account of the operating and
development activities of the Corporation and will have such other powers and
perform such other duties as the Board of Directors may from time to time
prescribe or as the Chief Executive Officer may from time to time delegate to
him.
Section 5.10. Chief Financial Officer. The Chief Financial Officer will
have principal responsibility for the financial operations of the Corporation.
The Chief Financial Officer will render to the Directors whenever they may
require it an account of the operating results and financial condition of the
Corporation and will have such other powers and perform such other duties as the
Board of Directors may from time to time prescribe or as the Chief Executive
Officer may from time to time delegate to him.
Section 5.11. Secretary. The Secretary will attend all meetings of the
stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The Secretary will perform like duties for the
Board of Directors and committees thereof when required. The Secretary will
give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors. The Secretary will keep in safe
custody the seal of the Corporation. The Secretary will be under the
supervision of the Chief Executive Officer. The Secretary will have such other
powers and perform such other duties as the Board of Directors may from time to
time prescribe or as the Chief Executive Officer may from time to time delegate
to him.
Section 5.12. Bonding. The Corporation may secure a bond to protect the
Corporation from loss in the event of defalcation by any of the officers, which
bond may be in such form and amount and with such surety as the Board of
Directors may deem appropriate.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
--------------------------------
Section 6.1. Form of Certificates. Certificates, in such form as
may be determined by the Board of Directors, representing shares to which
stockholders are entitled will be delivered to each stockholder. Such
certificates will be consecutively numbered and will be entered in the stock
book
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of the Corporation as they are issued. Each certificate will state on the
face thereof the holder's name, the number, class of shares, and the par value
of such shares or a statement that such shares are without par value. They will
be signed by the Chief Executive Officer or Chief Operating Officer and the
Secretary or an Assistant Secretary, and may be sealed with the seal of the
Corporation or a facsimile thereof. If any certificate is countersigned by a
transfer agent, or an assistant transfer agent or registered by a registrar,
either of which is other than the Corporation or an employee of the Corporation,
the signatures of the Corporation's officers may be facsimiles. In case any
officer or officers who have signed, or whose facsimile signature or signatures
have been used on such certificate or certificates, ceases to be such officer or
officers of the Corporation, whether because of death, resignation or otherwise,
before such certificate or certificates have been delivered by the Corporation
or its agents, such certificate or certificates may nevertheless be adopted by
the Corporation and be issued and delivered as though the person or persons who
signed such certificate or certificates or whose facsimile signature or
signatures have been used thereon had not ceased to be such officer or officers
of the Corporation.
Section 6.2. Lost Certificates. The Board of Directors may direct
that a new certificate be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing such issue of a new certificate, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may require the owner of such lost or destroyed certificate, or his
legal representative, to advertise the same in such manner as it may require
and/or to give the Corporation a bond, in such form, in such sum, and with such
surety or sureties as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost or destroyed. When a certificate has been lost, apparently destroyed
or wrongfully taken, and the holder of record fails to notify the Corporation
within a reasonable time after such holder has notice of it, and the Corporation
registers a transfer of the shares represented by the certificate before
receiving such notification, the holder of record is precluded from making any
claim against the Corporation for the transfer of a new certificate.
Section 6.3. Transfer of Shares. Shares of stock will be
transferable only on the books of the Corporation by the holder thereof in
person or by such holder's duly authorized attorney. Upon surrender to the
Corporation or the transfer agent of the Corporation of a certificate
representing shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it will be the duty of the
Corporation or the transfer agent of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 6.4. Registered Stockholders. The Corporation will be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and, accordingly, will 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 has express or other notice thereof, except
as otherwise provided by law.
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ARTICLE VII
INDEMNIFICATION
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Section 7.1. Indemnification of Directors and Officers. (a) The
Corporation (i) 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 such person is or was, at any time prior to or during which this
Article VII is in effect, a director of officer of the Corporation, or is or
was, at any time prior to or during which this Article VII is in effect, serving
at the request of the Corporation as a director or officer of another
corporation partnership, joint venture, trust, other enterprises or employee
benefit plan and (ii) upon a determination by the Board of Directors that
indemnification is appropriate, the Corporation may 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 proceedings, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was, at any time prior to or during
which this Article VII is in effect, an employee or agent of the Corporation or
at the request of the Corporation was serving as an employee or agent of any
other corporation, partnership, joint venture, trust, other enterprise or
employee benefit plan, in the case of (i) and (ii) against reasonable expenses
(including attorneys' fees), judgments, fines, penalties, amounts paid in
settlement and other liabilities actually and reasonably incurred by such person
in connection with such action, suit or proceeding if such person 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 that 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 such 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, had reasonable cause to believe that his conduct was unlawful.
(b) The Corporation (i) 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 such person is or was, at any
time prior to or during which this Article VII is in effect, a director or
officer of the Corporation, or is or was, at any time prior to or during which
this Article VII is in effect, serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise and (ii) upon a determination by the
Board of Directors that indemnification is appropriate, the Corporation may
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 such
person is or was, at any time prior to or during which this Article VII is in
effect, an employee or agent of the Corporation or at the request of the
Corporation was serving as an employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
the case of (i) and (ii) against expenses (including attorneys' fees), actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in
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good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation; provided, that no indemnification shall be
made under this subsection (b) in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of Chancery, or other
court of appropriate jurisdiction, 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 of such
expenses which the Delaware Court of Chancery, or other court of appropriate
jurisdiction, shall deem proper.
(c) Any indemnification under subsections (a) or (b) (unless ordered
by the Delaware Court of Chancery or other court of appropriate jurisdiction)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the circumstances
because he has met the applicable standard of conduct set forth in subsections
(a) and (b). Such determination shall be made (1) by the Board of Directors by
a majority vote of a quorum consisting of directors not parties to such action,
suit or proceeding; or (2) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel, in written opinion, selected by the Board of Directors; or (3) by the
Stockholders. In the event a determination is made under this subsection (c)
that the director, officer, employer or agent has met the applicable standard of
conduct as to some matters but not as to others, amounts to be indemnified may
be reasonably prorated.
(d) Expenses incurred by a person who is or was a director or officer
of the Corporation in appearing at, participating in or defending any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, shall be paid by the Corporation at
reasonable intervals in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized by this Article VII.
In addition, the Corporation shall pay or reimburse expenses incurred by any
person who is or was a director or officer of the Corporation in connection with
such person's appearance as a witness or other participant in a proceeding in
which such person or the Corporation is not a named party to such proceeding,
provided that such appearance or participation is on behalf of the Corporation
or by reason of his capacity as a director or officer, or former director or
officer of the Corporation.
(e) If in a suit or proceeding for indemnification required under this
Article VII of a director or officer, or former director or officer, of the
Corporation of any of its affiliates, a court of competent jurisdiction
determines that such person is entitled to indemnification under this Article
VII, the court shall award, and the Corporation shall pay, to such person the
expenses incurred in securing such judicial determination.
(f) It is the intention of the Corporation to indemnify the persons
referred to in this Article VII to the fullest extent permitted by law and with
respect to any action, suit or proceeding arising from events which occur at any
time prior to or during which this Article VII is in effect. The
indemnification and advancement of expenses provided by this Article VII not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be or
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become entitled under any law, the Certificate of Incorporation, these Bylaws,
agreement, the vote of stockholders or disinterested directors or otherwise, or
under any policy or policies of insurance purchased and maintained by the
Corporation on behalf of any such person, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such person.
(g) The indemnification provided by this Article VII shall be subject
to all valid and applicable laws, and, in the event this Article VII or any
other provisions hereof or the indemnification contemplated hereby are found to
be inconsistent with or contrary to any such valid laws, the latter shall be
deemed to control and this Article VII shall be regarded as modified
accordingly, and, as so modified, to continue in full force and effect.
ARTICLE VIII
GENERAL PROVISIONS
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Section 8.1. Dividends. Dividends upon the outstanding shares of
the Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting. Dividends may be declared and paid in cash, in property, or in shares
of the Corporation, subject to the provisions of the General Corporation Law of
the State of Delaware and the Certificate of Incorporation. The Board of
Directors may fix in advance a record date for the purpose of determining
stockholders entitled to receive payment of any dividend, such record date will
not precede the date upon which the resolution fixing the record date is
adopted, and such record date will not be more than sixty days prior to the
payment date of such dividend. In the absence of any action by the Board of
Directors, the close of business on the date upon which the Board of Directors
adopts the resolution declaring such dividend will be the record date.
Section 8.2. Reserves. There may be created by resolution of the
Board of Directors out of the surplus of the Corporation such reserve or
reserves as the Directors from time to time, in their discretion, deem proper to
provide for contingencies, or to equalize dividends, or to repair or maintain
any property of the Corporation, or for such other purpose as the Directors may
deem beneficial to the Corporation, and the Directors may modify or abolish any
such reserve in the manner in which it was created. Surplus of the Corporation
to the extent so reserved will not be available for the payment of dividends or
other distributions by the Corporation.
Section 8.3. Telephone and Similar Meetings. Stockholders,
directors and committee members may participate in and hold meetings by means of
conference telephone or similar communications equipment by which all persons
participating in the meeting can hear each other. Participation in such a
meeting will constitute presence in person at the meeting, except where a person
participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting has not been lawfully called or convened.
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Section 8.4. Books and Records. The Corporation will keep correct
and complete books and records of account and minutes of the proceedings of its
stockholders and Board of Directors, and will keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
Section 8.5. Fiscal Year. The fiscal year of the Corporation will be
fixed by resolution of the Board of Directors.
Section 8.6. Seal. The Corporation may have a seal, and the seal
may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Any officer of the Corporation will have authority to
affix the seal to any document requiring it.
Section 8.7. Insurance. The Corporation may at the discretion of
the Board of Directors purchase and maintain insurance on behalf of the
Corporation and any person whom it has the power to indemnify pursuant to law,
the Certificate of Incorporation, these Bylaws or otherwise.
Section 8.8. Resignation. Any director, officer or agent may resign
by giving written notice to the President or the Secretary. Such resignation
will take effect at the time specified therein or immediately if no time is
specified therein. Unless otherwise specified therein, the acceptance of such
resignation will not be necessary to make it effective.
Section 8.9. Amendment of Bylaws. Other than as set forth herein,
these Bylaws may be altered, amended, or repealed at any meeting of the Board of
Directors at which a quorum is present, by the affirmative vote of a majority of
the Directors present at such meeting.
Section 8.10. Invalid Provisions. If any part of these Bylaws is
held invalid or inoperative for any reason, the remaining parts, so far as
possible and reasonable, will be valid and operative.
Section 8.11. Relation to the Certificate of Incorporation. These
Bylaws are subject to, and governed by, the Certificate of Incorporation of the
Corporation as amended from time to time.
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