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EXHIBIT 3.1
AMENDED AND RESTATED
BYLAWS
OF
THE VIALINK COMPANY,
A DELAWARE CORPORATION
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TABLE OF CONTENTS
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ARTICLE I. Offices................................................................................................1
Section 1.1 Registered Office.............................................................1
Section 1.2 Other Offices.................................................................1
ARTICLE II. Corporate Seal........................................................................................1
ARTICLE III. Stockholders' Meetings...............................................................................1
Section 3.1 Place of Meetings.............................................................1
Section 3.2 Annual Meeting................................................................2
Section 3.3 Special Meetings..............................................................4
Section 3.4 Notice of Meetings............................................................4
Section 3.5 Quorum........................................................................4
Section 3.6 Adjournment and Notice of Adjourned Meetings..................................5
Section 3.7 Voting Rights.................................................................5
Section 3.8 Joint Owners of Stock.........................................................5
Section 3.9 List of Stockholders..........................................................5
Section 3.10 No Action Without Meeting.....................................................6
Section 3.11 Organization..................................................................6
ARTICLE IV. Directors.............................................................................................7
Section 4.1 Number and Term of Office; Classification.....................................7
Section 4.2 Powers........................................................................7
Section 4.3 Vacancies.....................................................................7
Section 4.4 Resignation...................................................................8
Section 4.5 Removal.......................................................................8
Section 4.6 Meetings......................................................................8
Section 4.7 Quorum and Voting.............................................................9
Section 4.8 Action Without Meeting........................................................9
Section 4.9 Fees and Compensation.........................................................9
Section 4.10 Committees...................................................................10
ARTICLE V. Officers..............................................................................................11
Section 5.1 Officers Designated..........................................................11
Section 5.2 Tenure and Duties of Officers................................................11
Section 5.3 Delegation of Authority......................................................14
Section 5.4 Resignations.................................................................14
Section 5.5 Removal......................................................................14
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ARTICLE VI. Execution of Corporate Instruments and Voting of Securities Owned by the Corporation.................14
Section 6.1 Execution of Corporate Instruments...........................................14
Section 6.2 Voting of Securities Owned by the Corporation................................15
ARTICLE VII. Shares of Stock.....................................................................................15
Section 7.1 Form and Execution of Certificates...........................................15
Section 7.2 Lost Certificates............................................................16
Section 7.3 Transfers....................................................................16
Section 7.4 Fixing Record Dates..........................................................16
Section 7.5 Registered Stockholders......................................................17
ARTICLE VIII. Other Securities of the Corporation................................................................17
Section 8.1 Execution of Other Securities................................................17
ARTICLE IX. Dividends............................................................................................17
Section 9.1 Declaration of Dividends.....................................................17
Section 9.2 Dividend Reserve.............................................................18
ARTICLE X. Fiscal Year...........................................................................................18
ARTICLE XI. Indemnification of Directors, Officers, Employees and Other Agents...................................18
Section 11.1 Directors and Executive Officers.............................................18
Section 11.2 Other Officers, Employees and Other Agents...................................18
Section 11.3 Good Faith...................................................................18
Section 11.4 Expenses.....................................................................19
Section 11.5 Enforcement..................................................................20
Section 11.6 Non-Exclusivity of Rights....................................................20
Section 11.7 Survival of Rights...........................................................20
Section 11.8 Insurance....................................................................20
Section 11.9 Amendments...................................................................20
Section 11.10 Savings Clause...............................................................20
Section 11.11 Certain Definitions..........................................................21
ARTICLE XII. Notices.............................................................................................22
Section 12.1 Notice to Stockholders.......................................................22
Section 12.2 Notice to Directors..........................................................22
Section 12.3 Address Unknown..............................................................22
Section 12.4 Affidavit of Mailing.........................................................22
Section 12.5 Time Notices Deemed Given....................................................22
Section 12.6 Failure to Receive Notice....................................................22
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Section 12.7 Notice to Person with Whom Communication Is Unlawful.........................22
Section 12.8 Notice to Person with Undeliverable Address..................................23
ARTICLE XIII. Amendments.........................................................................................23
Section 13.1 Amendments...................................................................23
Section 13.2 Application of Bylaws........................................................23
ARTICLE XIV. Loans to Officers...................................................................................24
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AMENDED AND RESTATED
BYLAWS
OF
THE VIALINK COMPANY,
A DELAWARE CORPORATION
ARTICLE I.
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of the
corporation shall be the registered office named in the certificate of
incorporation of the corporation, or such other office as may be designated
from time to time by the Board of Directors in the manner provided by law.
SECTION 1.2 OTHER OFFICES. The corporation may 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. The books of the corporation may be kept (subject to any provision
contained in the Delaware General Corporation Law) outside the State of
Delaware at such place or places as may be designated from time to time by the
Board of Directors or in these Bylaws.
ARTICLE II.
CORPORATE SEAL
The corporate seal shall consist of a die bearing the name of the
corporation. Said seal may be used by causing it, or a facsimile thereof, to be
impressed, affixed or reproduced.
ARTICLE III.
STOCKHOLDERS' MEETINGS
SECTION 3.1 PLACE OF MEETINGS. Meetings of the stockholders of the
corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the principal executive offices of the
corporation.
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SECTION 3.2 ANNUAL MEETING.
(a) The annual meeting of the stockholders of the
corporation, for the purpose of election of Directors and for such other
business as may lawfully come before it, shall be held on such date and at such
time as may be designated from time to time by the Board of Directors.
(b) At an annual meeting of the stockholders, only such
business shall be conducted as shall have been properly brought before the
meeting. To be properly brought before an annual meeting, business must be: (A)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors; (B) otherwise properly brought before
the meeting by or at the direction of the Board of Directors; or (C) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received by the Secretary of the corporation not later than the
close of business on the one hundred twentieth (120th) day prior to the first
anniversary of the date of the proxy statement delivered to stockholders in
connection with the preceding year's annual meeting; provided, however, that if
either (i) the date of the annual meeting is advanced more than thirty (30)
days or delayed (other than as a result of adjournment) more than sixty (60)
days from such an anniversary date or (ii) no proxy statement was delivered to
stockholders in connection with the preceding year's annual meeting, notice by
the stockholder to be timely must be so delivered not earlier than the close of
business on the ninetieth (90th) day prior to such annual meeting and not later
than the close of business on the later of the sixtieth (60th) day prior to
such annual meeting or the close of business on the tenth (10th) day following
the day on which public announcement of the date of such meeting is first made
by the corporation. To be in proper form, a stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the annual meeting:
(i) a brief description of the business desired to
be brought before the annual meeting and the reasons for
conducting such business at the annual meeting;
(ii) a representation that the stockholder is a
holder of record of stock of the corporation entitled to vote
at such meeting and, if applicable, intends to appear in
person or by proxy at the meeting to nominate the person or
persons specified in the notice or introduce the business
specified in the notice;
(iii) the name and address, as they appear on the
corporation's books, of the stockholder proposing such
business;
(iv) the class and number of shares of the
corporation which are beneficially owned by the stockholder;
(v) any material interest of the stockholder in such
business; and
(vi) any other information that is required to be
provided by the stockholder pursuant to Regulation 14A under
the Securities Exchange Act of
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1934, as amended (the "Exchange Act"), in such stockholder's
capacity as a proponent of a stockholder proposal.
The chairman of the meeting shall determine whether any
business proposed to be transacted by the stockholders has been properly
brought before the meeting and, if any proposed business has not been properly
brought before the meeting, the chairman shall declare that such proposed
business shall not be presented for stockholder action at the meeting. For
purposes of this Section 3.2, "public announcement" shall mean disclosure in a
press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission pursuant to Sections
13, 14 or 15(d) of the Exchange Act. Notwithstanding any provision in this
Section 3.2 to the contrary, requests for inclusion of proposals in the
corporation's proxy statement made pursuant to Rule 14a-8 under the Exchange
Act shall be deemed to have been delivered in a timely manner if delivered in
accordance with such Rule. Notwithstanding compliance with the requirements of
this Section 3.2, the chairman presiding at any meeting of the stockholders
may, in his sole discretion, refuse to allow a stockholder or stockholder
representative to present any proposal which the corporation would not be
required to include in a proxy statement under any rule promulgated by the
Securities and Exchange Commission.
(c) Only persons who are nominated in accordance with
the procedures set forth in this paragraph shall be eligible for election as
Directors. Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors or by any stockholder of the corporation entitled to
vote in the election of Directors at the meeting who complies with the notice
procedures set forth in this paragraph. Such nominations, other than those made
by or at the direction of the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the corporation in accordance with
the provisions of paragraph (b) of this Section 3.2. Such stockholder's notice
shall set forth (i) as to each person, if any, whom the stockholder proposes to
nominate for election or re-election as a Director: (A) the name, age, business
address and residence address of such person; (B) the principal occupation or
employment of such person; (C) the class and number of shares of the
corporation which are beneficially owned by such person; (D) a description of
all arrangements or understandings between the stockholder and each nominee and
any other person or persons (naming such person or persons) pursuant to which
the nominations are to be made by the stockholder; and (E) any other
information relating to such person that is required to be disclosed in
solicitations of proxies for election of Directors, or is otherwise required in
each case pursuant to Regulation 14A under the 1934 Act (including without
limitation such person's written consent to being named in the proxy statement,
if any, as a nominee and to serving as a Director if elected); and (ii) as to
such stockholder giving notice, the information required to be provided
pursuant to paragraph (b) of this Section 3.2. At the request of the Board of
Directors, any person nominated by a stockholder for election as a Director
shall furnish to the Secretary of the corporation that information required to
be set forth in the stockholder's notice of nomination which pertains to the
nominee. No person shall be eligible for election as a Director of the
corporation unless nominated in accordance with the procedures set forth in
this paragraph. The chairman of the meeting shall, if the facts warrant,
determine and declare at the meeting that a nomination was not made in
accordance with the procedures prescribed by these Bylaws, and if the chairman
should so determine, the chairman shall so declare at the meeting, and the
defective nomination shall be disregarded.
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SECTION 3.3 SPECIAL MEETINGS.
(a) Special meetings of the stockholders of the
corporation may only be called, for any purpose or purposes, by the Board of
Directors pursuant to a resolution adopted by a majority of the total number of
authorized Directors (whether or not there exist any vacancies in previously
authorized directorships at the time any such resolution is presented to the
Board of Directors for adoption).
(b) No business may be transacted at such special
meeting otherwise than specified in the resolution calling for the meeting. The
Board of Directors shall determine the time and place of such special meeting,
which shall be held not less than thirty-five (35) nor more than one hundred
twenty (120) days after the date of the receipt of the request. Upon
determination of the time and place of the meeting, notice shall be given to
the stockholders entitled to vote, in accordance with the provisions of Section
3.4 of these Bylaws. If the notice is not given within sixty (60) days after
the receipt of the request, the person or persons requesting the meeting may
set the time and place of the meeting and give the notice. Nothing contained in
this paragraph (b) shall be construed as limiting, fixing or affecting the time
when a meeting of stockholders may be held.
SECTION 3.4 NOTICE OF MEETINGS. Except as otherwise provided by law
or the certificate of incorporation of the corporation, as the same may be
amended or restated from time to time and including any certificates of
designation thereunder (hereinafter, the "Certificate of Incorporation"),
written notice of each meeting of stockholders shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting, such notice to specify the place,
date, time and purpose or purposes of the meeting. Notice of any meeting of
stockholders may be waived in writing, signed by the person entitled to notice
thereof, either before or after such meeting, and will be waived by any
stockholder by his attendance thereat in person or by proxy, except when the
stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Any stockholder so waiving notice
of such meeting shall be bound by the proceedings of any such meeting in all
respects as if due notice thereof had been given.
SECTION 3.5 QUORUM. At all meetings of stockholders, except where
otherwise provided by statute or by the Certificate of Incorporation, or by
these Bylaws, the presence, in person or by duly authorized proxy, of the
holders of a majority of the outstanding shares of stock entitled to vote shall
constitute a quorum for the transaction of business. In the absence of a
quorum, any meeting of stockholders may be adjourned, from time to time, either
by the chairman of the meeting or by vote of the holders of a majority of the
shares represented thereat, but no other business shall be transacted at such
meeting. The stockholders present at a duly called or convened meeting, at
which a quorum is present, may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a
quorum. Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, all actions taken by the holders of a majority of the votes
cast, excluding abstentions, at any meeting at which a quorum is present shall
be valid and binding upon the corporation; provided, however, that Directors
shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at the meeting and entitled to vote on the election of
Directors. Where a
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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 and the affirmative vote of the majority (plurality, in the case of
the election of Directors) of shares of such class or classes present in person
or represented by proxy at the meeting shall be the act of such class.
SECTION 3.6 ADJOURNMENT AND NOTICE OF ADJOURNED MEETINGS. Any meeting
of stockholders, whether annual or special, may be adjourned from time to time
either by the chairman of the meeting or by the vote of a majority of the
shares casting votes, excluding abstentions. When a meeting is adjourned to
another time or place, notice need not be given of the adjourned meeting if the
time and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
SECTION 3.7 VOTING RIGHTS. For the purpose of determining those
stockholders entitled to vote at any meeting of the stockholders, except as
otherwise provided by law, only persons in whose names shares stand on the
stock records of the corporation on the record date, as provided in Section 7.5
of these Bylaws, shall be entitled to vote at any meeting of stockholders.
Every person entitled to vote or execute consents shall have the right to do so
either in person or by an agent or agents authorized by a written proxy
executed by such person or his duly authorized agent, which proxy shall be
filed with the Secretary at or before the meeting at which it is to be used. An
agent so appointed need not be a stockholder. No proxy shall be voted after
three (3) years from its date of creation unless the proxy provides for a
longer period. Elections of Directors need not be by written ballot, unless
otherwise provided in the Certificate of Incorporation.
SECTION 3.8 JOINT OWNERS OF STOCK. If shares or other securities
having voting power stand of record in the names of two (2) or more persons,
whether fiduciaries, members of a partnership, joint tenants, tenants in
common, tenants by the entirety, or otherwise, or if two (2) or more persons
have the same fiduciary relationship respecting the same shares, unless the
Secretary is given written notice to the contrary and is furnished with a copy
of the instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the following
effect: (a) if only one (1) votes, his act binds all; (b) if more than one (1)
votes, the act of the majority so voting binds all; or (c) if more than one (1)
votes, but the vote is evenly split on any particular matter, each faction may
vote the securities in question proportionally, or may apply to the Delaware
Court of Chancery for relief as provided in the Delaware General Corporation
Law, Section 217(b). If the instrument filed with the Secretary shows that any
such tenancy is held in unequal interests, a majority or even-split for the
purpose of clause (c) shall be a majority or even-split in interest.
SECTION 3.9 LIST OF STOCKHOLDERS. The Secretary shall prepare and
make, at least ten (10) days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at said meeting, arranged in
alphabetical order, 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
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examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
specified, at the place where the meeting is to be held. The list shall be
produced and kept at the time and place of meeting during the whole time
thereof and may be inspected by any stockholder who is present.
SECTION 3.10 NO ACTION WITHOUT MEETING. The stockholders of the
corporation may not take action by written consent without a meeting and must
take any actions at a duly called annual or special meeting.
SECTION 3.11 ORGANIZATION.
(a) At every meeting of stockholders, unless another
officer of the corporation has been appointed by the Board of Directors, the
Chairman of the Board of Directors, or, if a Chairman has not been appointed,
is absent, or designates the next senior officer present to so act, the
President, or, if the President is absent, the most senior Vice President
present, or, in the absence of any such officer, a chairman of the meeting
chosen by a majority in interest of the stockholders entitled to vote, present
in person or by proxy, shall act as chairman. The Secretary, or, in his
absence, an Assistant Secretary directed to do so by the President, shall act
as secretary of the meeting.
(b) The Board of Directors of the corporation shall be
entitled to make such rules or regulations for the conduct of meetings of
stockholders as it shall deem necessary, appropriate or convenient. Subject to
such rules and regulations of the Board of Directors, if any, the chairman of
the meeting shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are necessary, appropriate or convenient for the proper conduct of
the meeting, including, without limitation, establishing an agenda or order of
business for the meeting, rules and procedures for maintaining order at the
meeting and the safety of those present, limitations on participation in such
meeting to stockholders of record of the corporation and their duly authorized
and constituted proxies and such other persons as the chairman shall permit,
restrictions on entry to the meeting after the time fixed for the commencement
thereof, limitations on the time allotted to questions or comments by
participants and regulation of the opening and closing of the polls for
balloting on matters which are to be voted on by ballot. Unless and to the
extent determined by the Board of Directors or the chairman of the meeting,
meetings of stockholders shall not be required to be held in accordance with
rules of parliamentary procedure.
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ARTICLE IV.
DIRECTORS
SECTION 4.1 NUMBER AND TERM OF OFFICE; CLASSIFICATION.
(a) The number of directors which shall constitute the
whole Board of Directors shall be determined from time to time by the Board of
Directors (provided that no decrease in the number of directors which would
have the effect of shortening the term of an incumbent director may be made by
the Board of Directors), provided that the number of directors shall be not
less than one (1). At each annual meeting of stockholders, Directors of the
corporation shall be elected to hold office until the expiration of the term
for which they are elected, and until their successors have been duly elected
and qualified or until such Director's earlier death, resignation or due
removal; except that if any such election shall not be so held, such election
shall take place at a stockholders' meeting called and held in accordance with
the Delaware General Corporation Law. Directors need not be stockholders unless
so required by the Certificate of Incorporation. If, for any reason, the
Directors shall not have been elected at an annual meeting, they may be elected
as soon thereafter as convenient at a special meeting of the stockholders
called for that purpose in the manner provided in these Bylaws.
(b) The Directors of the corporation shall be divided
into three classes as nearly equal in size as is practicable, hereby designated
Class I, Class II and Class III. The initial Class I, Class II and Class III
directors shall be those directors designated and elected by the Board of
Directors. The term of office of the initial Class I directors shall expire at
the 2000 annual meeting of stockholders, the term of office of the initial
Class II directors shall expire at the second succeeding annual meeting of
stockholders, and the term of office of the initial Class III directors shall
expire at the third succeeding annual meeting of stockholders. At each annual
meeting of stockholders, Directors to replace those of the Class whose terms
expire at such annual meeting shall be elected to hold office until the third
succeeding annual meeting and until their respective successors shall have been
duly elected and qualified. If the number of directors is hereafter changed,
any newly created directorships or decrease in directorships shall be so
apportioned among the classes as to make all classes as nearly equal in number
as is practicable.
SECTION 4.2 POWERS. The powers of the corporation shall be exercised,
its business conducted and its property controlled by the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of
Incorporation.
SECTION 4.3 VACANCIES. Vacancies occurring on the Board of Directors
may be filled by vote of a majority of the remaining members of the Board of
Directors, although less than a quorum. Each Director so elected shall hold
office for the unexpired portion of the term of the Director or newly created
directorship whose place shall be vacant and until his or her successor shall
have been duly elected and qualified or until such Director's earlier death,
resignation or due removal. A vacancy in the Board of Directors shall be deemed
to exist under this Section 4.3 in the case of (i) the death, removal or
resignation of any Director; (ii) an increase in the authorized number of
Directors pursuant to Section 4.1(a) above; or (iii) if the stockholders fail
at any meeting of stockholders at which Directors are to be elected (including
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any meeting referred to in Section 4.6 below) to elect the number of Directors
then constituting the whole Board of Directors.
SECTION 4.4 RESIGNATION. Any Director may resign at any time by
delivering his or her written resignation to the Secretary, such resignation to
specify whether it will be effective at a particular time, upon receipt by the
Secretary or at the pleasure of the Board of Directors. If no such
specification is made, it shall be deemed effective at the pleasure of the
Board of Directors. When one or more Directors shall resign from the Board of
Directors, 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 vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each Director so chosen shall hold
office for the unexpired portion of the term of the Director whose place shall
be vacated and until his successor shall have been duly elected and qualified.
SECTION 4.5 REMOVAL. At a special meeting of stockholders called for
such purpose and in the manner provided herein, subject to any limitations
imposed by law or the Certificate of Incorporation, the Board of Directors, or
any individual Director, may only be removed from office for cause, and a new
Director or Directors shall be elected by a vote of stockholders holding a
majority of the outstanding shares entitled to vote at an election of
Directors.
SECTION 4.6 MEETINGS.
(a) Annual Meetings. Unless the Board shall determine
otherwise, the annual meeting of the Board of Directors shall be held
immediately before or after the annual meeting of stockholders and at the place
where such meeting is held. No notice of an annual meeting of the Board of
Directors shall be necessary and such meeting shall be held for the purpose of
electing officers and transacting such other business as may lawfully come
before it.
(b) Regular Meetings. Except as hereinafter otherwise
provided, regular meetings of the Board of Directors shall be held in the
principal executive offices of the corporation. Unless otherwise restricted by
the Certificate of Incorporation, regular meetings of the Board of Directors
may also be held at any place within or without the State of Delaware which has
been designated by resolution of the Board of Directors or the written consent
of all directors.
(c) Special Meetings. Unless otherwise restricted by the
Certificate of Incorporation, and subject to the notice requirements contained
herein, special meetings of the Board of Directors may be held at any time and
place within or without the State of Delaware whenever called by the Chairman
of the Board, the President or any two of the Directors.
(d) Telephone Meetings. Any member of the Board of
Directors, or of any committee thereof, may participate in a meeting by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in a meeting by such means shall constitute presence in person at such meeting.
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(e) Notice of Meetings. Written notice of the time and
place of all special meetings of the Board of Directors shall be given at least
one (1) day before the date of the meeting. Such notice need not state the
purpose or purposes of such meeting, except as may otherwise be required by law
or provided for in the Certificate of Incorporation or these Bylaws. Notice of
any meeting may be waived in writing at any time before or after the meeting
and will be deemed waived by any Director by attendance thereat, except when
the Director attends the meeting solely for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
(f) Waiver of Notice. The transaction of all business at
any meeting of the Board of Directors, or any committee thereof, however called
or noticed, or wherever held, shall be as valid as though had at a meeting duly
held after regular call and notice, if a quorum be present and if, either
before or after meeting, each of the Directors not present shall sign a written
waiver of notice, or a consent to holding such meeting, or an approval of the
minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting.
SECTION 4.7 QUORUM AND VOTING.
(a) Unless the Certificate of Incorporation requires a
greater number and except with respect to indemnification questions arising
under Article XI hereof, for which a quorum shall be one-third of the exact
number of Directors fixed from time to time in accordance with Section 4.1
hereof, but not less than one (1), a quorum of the Board of Directors shall
consist of a majority of the exact number of directors fixed from time to time
in accordance with Section 4.1 of these Bylaws, but not less than one (1);
provided, however, at any meeting whether a quorum be present or otherwise, a
majority of the Directors present may adjourn from time to time until the time
fixed for the next regular meeting of the Board of Directors, without notice
other than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a
quorum is present, all questions and business shall be determined by a vote of
the majority of the Directors present, unless a different vote is required by
law, the Certificate of Incorporation or these Bylaws.
SECTION 4.8 ACTION WITHOUT MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting, if all members of the Board
of Directors or committee, as the case may be, consent thereto in writing, and
such writing or writings are filed with the minutes of proceedings of the Board
of Directors or committee.
SECTION 4.9 FEES AND COMPENSATION. Directors shall be entitled to
such compensation for their services as may be approved by the Board of
Directors, including, if so approved, by resolution of the Board of Directors,
a fixed sum and expenses of attendance, if any, for attendance at each regular
or special meeting of the Board of Directors and at any meeting of a committee
of the Board of Directors. Nothing herein contained shall be construed to
preclude any Director from serving the corporation in any other capacity as an
officer, agent, employee, or otherwise and receiving compensation therefor.
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SECTION 4.10 COMMITTEES.
(a) Executive Committee. The Board of Directors may by
resolution passed by a majority of the whole Board of Directors appoint an
Executive Committee to consist of one (1) or more members of the Board of
Directors. The Executive Committee, to the extent permitted by law and
specifically granted by the Board of Directors, shall have, and may exercise
when the Board of Directors is not in session, all powers of the Board of
Directors in the management of the business and affairs of the corporation
except such committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement of merger or consolidation,
to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, to recommend to the
stockholders of the corporation a dissolution of the corporation or a
revocation of a dissolution, or to amend these Bylaws.
(b) Other Committees. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, from time to
time appoint such other committees as may be permitted by law. Such other
committees appointed by the Board of Directors shall consist of one (1) or more
members of the Board of Directors and shall have such powers and perform such
duties as may be prescribed by the resolution or resolutions creating such
committees, but in no event shall such committee have the powers denied to the
Executive Committee in these Bylaws.
(c) Term. Each member of a committee of the Board of
Directors shall serve a term on the committee coexistent with such member's
term on the Board of Directors. The Board of Directors, subject to the
provisions of paragraphs (a) and (b) of this Section 4.10 may at any time
increase or decrease the number of members of a committee or terminate the
existence of a committee. The membership of a committee member shall terminate
on the date of his or her death or voluntary resignation from the committee or
from the Board of Directors. The Board of Directors may at any time for any
reason remove any individual committee member and the Board of Directors may
fill any committee vacancy created by death, resignation, removal or increase
in the number of members of the committee. The Board of Directors 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, and, in
addition, in the absence or disqualification of any member of a committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member.
(d) Meetings. Unless the Board of Directors shall
otherwise provide, regular meetings of the Executive Committee or any other
committee appointed pursuant to this Section 4.10 shall be held at such times
and places as are determined by the Board of Directors, or by any such
committee, and when notice thereof has been given to each member of such
committee, no further notice of such regular meetings need be given thereafter.
Special meetings of any such committee may be held at any place which has been
determined from time to time by such committee, and may be called by any
Director who is a member of such committee, upon written notice to the members
of such committee of the time and place of such special meeting given in the
manner provided for the giving of written notice to members of the Board of
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Directors of the time and place of special meetings of the Board of Directors.
Notice of any special meeting of any committee may be waived in writing at any
time before or after the meeting and will be waived by any Director by
attendance thereat, except when the Director attends such special meeting
solely for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called
or convened. A majority of the authorized number of members of any such
committee shall constitute a quorum for the transaction of business, and the
act of a majority of those present at any meeting at which a quorum is present
shall be the act of such committee.
(e) Organization. The Chairman of the Board shall
preside at every meeting of the Board of Directors, if present. In the case of
any meeting, if there is no Chairman of the Board or if the Chairman is not
present, the Vice Chairman (if there be one) shall preside, or if there be no
Vice Chairman or if the Vice Chairman is not present, a chairman chosen by a
majority of the Directors present shall act as chairman of such meeting. The
Secretary of the corporation or, in the absence of the Secretary, any person
appointed by the Chairman shall act as secretary of the meeting.
ARTICLE V.
OFFICERS
SECTION 5.1 OFFICERS DESIGNATED. The officers of the corporation shall
include a President and a Secretary, and, if and when designated by the Board
of Directors, Chairman of the Board of Directors, one or more executive and
non-executive Vice Presidents (any one or more of which executive Vice
Presidents may be designated as Executive Vice President or Senior Vice
President or a similar title), and a Treasurer. The Board of Directors also
may, at its discretion, create additional officers and assign such duties to
those offices as it may deem appropriate from time to time, which offices may
include a Vice Chairman of the Board of Directors, a Chief Executive Officer, a
Chief Operating Officer, a Chief Financial Officer, one or more Assistant
Secretaries and Assistant Treasurers, and one or more other officers which may
be created at the discretion of the Board of Directors. Any one person may hold
any number of offices of the corporation at any one time unless specifically
prohibited therefrom by law. The salaries and other compensation of the
officers of the corporation shall be fixed by or in the manner designated by
the Board of Directors.
SECTION 5.2 TENURE AND DUTIES OF OFFICERS.
(a) General. All officers shall hold office at the
pleasure of the Board of Directors and until their successors shall have been
duly elected and qualified, unless sooner removed. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board of
Directors. If the office of any officer becomes vacant for any reason, the
vacancy may be filled by the Board of Directors. Except for the Chairman of the
Board and the Vice Chairman of the Board, no officer need be a director.
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(b) Duties of Chairman of the Board of Directors. The
Chairman of the Board of Directors, when present, shall preside at all meetings
of the Board of Directors and, unless the Chairman has designated the next
senior officer to so preside, at all meetings of the stockholders. The Chairman
of the Board of Directors shall perform other duties commonly incident to such
office and shall also perform such other duties and have such other powers as
the Board of Directors shall designate from time to time.
(c) Powers and Duties of the Vice Chairman of the Board.
The Board of Directors may but is not required to assign areas of
responsibility to a Vice Chairman of the Board, and, in such event, and subject
to the overall direction of the Chairman of the Board and the Board of
Directors, the Vice Chairman of the Board shall be responsible for supervising
the management of the affairs of the corporation and its subsidiaries within
the area or areas assigned and shall monitor and review on behalf of the Board
of Directors all functions within such corresponding area or areas of the
corporation and each such subsidiary of the corporation. In the absence of the
President, or in the event of the President's inability or refusal to act, the
Vice Chairman of the Board 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. Further, the Vice Chairman of the Board shall have such
other powers and duties as designated in accordance with these Bylaws and as
from time to time may be assigned to the Vice Chairman of the Board by the
Board of Directors or the Chairman of the Board.
(d) Duties of President. Unless the Board of Directors
otherwise determines (including by election of Chief Executive Officer) and
subject to the provisions of paragraph (e) below, the President shall be the
chief executive and chief operating officer of the corporation. Unless the
Board of Directors otherwise determines, he shall, in the absence of the
Chairman of the Board or Vice Chairman of the Board or if there be no Chairman
of the Board or Vice Chairman of the Board, preside at all meetings of the
stockholders and (should he be a director) of the Board of Directors. The
President shall have such other powers and duties as designated in accordance
with these Bylaws and as from time to time may be assigned to him by the Board
of Directors.
(e) Duties of the Chief Executive and Chief Operating
Officers. Subject to the control of the Board of Directors, the chief executive
officer shall have general executive charge, management and control, of the
properties, business and operations of the corporation with all such powers as
may be reasonably incident to such responsibilities; and subject to the control
of the chief executive officer, the chief operating officer shall have general
operating charge, management and control, of the properties, business and
operations of the corporation with all such powers as may be reasonably
incident to such responsibilities.
(f) Duties of Vice Presidents. Vice Presidents, by
virtue of their appointment as such, shall not necessarily be deemed to be
executive officers of the corporation, such status as an executive officer only
being conferred if and to the extent such Vice President is placed in charge of
a principal business unit, division or function (e.g., sales, administration or
finance) or performs a policy-making function for the corporation (within the
meaning of Section 16 of the 1934 Act and the rules and regulations promulgated
thereunder). Each executive Vice President shall at all times possess, and upon
the authority of the President or the chief executive officer any non-executive
Vice President shall from time to time possess, power to sign all certificates,
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contracts and other instruments of the corporation, except as otherwise limited
pursuant to Article VI hereof or by the Chairman of the Board, the President,
chief executive officer or the Vice Chairman of the Board. The Vice Presidents
shall perform other duties commonly incident to their office and shall also
perform such other duties and have such other powers as the Board of Directors
or the President shall designate from time to time.
(g) Duties of Secretary. The Secretary shall keep the
minutes of all meetings of the Board of Directors, committees of the Board of
Directors and the stockholders, in books provided for that purpose; shall
attend to the giving and serving of all notices; may in the name of the
corporation affix the seal of the corporation to all contracts and attest the
affixation of the seal of the corporation thereto; may sign with the other
appointed officers all certificates for shares of capital stock of the
corporation; and shall have charge of the certificate books, transfer books and
stock ledgers, and such other books and papers as the Board of Directors may
direct, all of which shall at all reasonable times be open to inspection of any
director upon application at the office of the corporation during business
hours. The Secretary shall perform all other duties given in these Bylaws and
other duties commonly incident to such office and shall also perform such other
duties and have such other powers as the Board of Directors shall designate
from time to time. The chief executive officer may direct any Assistant
Secretary to assume and perform the duties of the Secretary in the absence or
disability of the Secretary, and each Assistant Secretary shall perform other
duties commonly incident to such office and shall also perform such other
duties and have such other powers as the Board of Directors or the chief
executive officer, shall designate from time to time.
(h) Assistant Secretaries. Each Assistant Secretary
shall have the usual powers and duties pertaining to such offices, together
with such other powers and duties as designated in these Bylaws and as from
time to time may be assigned to an Assistant Secretary by the Board of
Directors, the Chairman of the Board, the President, the Vice Chairman of the
Board, or the Secretary. The Assistant Secretaries shall exercise the powers of
the Secretary during that officer's absence or inability or refusal to act.
(i) Duties of Treasurer.
(i) The Treasurer shall keep or cause to be kept the
books of account of the corporation in a thorough and proper
manner and shall render statements of the financial affairs
of the corporation in such form and as often as required by
the Board of Directors, the Chairman of the Board, the Vice
Chairman of the Board, chief executive officer, if one be
designated, the Chief Financial Officer. The Treasurer,
subject to the order of the Board of Directors, shall have
the custody of all funds and securities of the corporation.
The Treasurer shall perform other duties commonly incident to
such office and shall also perform such other duties and have
such other powers as the Board of Directors, the Chairman of
the Board, the Vice Chairman of the Board or the President
shall designate from time to time.
(ii) In absence of a designated Chief Financial
Officer, unless otherwise determined by the Board of
Directors or chief executive officer, the Treasurer shall
serve as the chief financial officer subject to control of
the chief executive officer.
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(iii) The Chief Financial Officer, if any be
designated, may, but need not serve as the Treasurer.
(j) Assistant Treasurers. Each Assistant Treasurer shall
have the usual powers and duties pertaining to such office, together with such
other powers and duties as designated in these Bylaws and as from time to time
may be assigned to each Assistant Treasurer by the Board of Directors, the
Chairman of the Board, the President, the Vice Chairman of the Board, or the
Treasurer. The Assistant Treasurers shall exercise the powers of the Treasurer
during that officer's absence or inability or refusal to act.
SECTION 5.3 DELEGATION OF AUTHORITY. For any reason that the Board of
Directors may deem sufficient, the Board of Directors may, except where
otherwise provided by statute, delegate the powers or duties of any officer to
any other person, and may authorize any officer to delegate specified duties of
such office to any other person. Any such delegation or authorization by the
Board shall be effected from time to time by resolution of the Board of
Directors.
SECTION 5.4 RESIGNATIONS. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President or to the
Secretary. Any such resignation shall be effective when received by the person
or persons to whom such notice is given, unless a later time is specified
therein, in which event the resignation shall become effective at such later
time. Unless otherwise specified in such notice, the acceptance of any such
resignation shall not be necessary to make it effective. Any resignation shall
be without prejudice to the rights, if any, of the corporation under any
contract with the resigning officer.
SECTION 5.5 REMOVAL. Any officer may be removed from office at any
time, either with or without cause, by the vote or written consent of a majority
of the Directors in office at the time, or by any committee or superior officers
upon whom such power of removal may have been conferred by the Board of
Directors.
ARTICLE VI.
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
SECTION 6.1 EXECUTION OF CORPORATE INSTRUMENTS. The Board of Directors
may, in its discretion, determine the method and designate the signatory officer
or officers, or other person or persons, to execute on behalf of the corporation
any corporate instrument or document, or to sign on behalf of the corporation
the corporate name without limitation, or to enter into contracts on behalf of
the corporation, except where otherwise provided by law or these Bylaws, and
such execution or signature shall be binding upon the corporation.
Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, promissory notes, deeds of trust, mortgages and
other evidences of indebtedness of the corporation, and other corporate
instruments or documents requiring the corporate seal, and
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certificates of shares of stock owned by the corporation, shall be executed,
signed or endorsed by the Chairman of the Board of Directors, the President,
Chief Executive Officer or any executive Vice President and if any be
designated, Chief Financial Officer, Treasurer, Assistant Secretary or
Assistant Treasurer, and upon the authority conferred by the Board of
Directors, President or Chief Executive Officer, any non-executive Vice
President, and by the Secretary. All other instruments and documents requiring
the corporate signature, but not requiring the corporate seal, may be executed
as aforesaid or in such other manner as may be directed by the Board of
Directors.
All checks and drafts drawn on banks or other depositaries on funds to
the credit of the corporation or in special accounts of the corporation shall
be signed by such person or persons as the Board of Directors shall authorize
so to do.
Unless authorized or ratified by the Board of Directors or within the
agency power of an officer, no officer, agent or employee shall have any power
or authority to bind the corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or for any amount.
SECTION 6.2 VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock
and other securities of other corporations owned or held by the corporation for
itself, or for other parties in any capacity, shall be voted, and all proxies
with respect thereto shall be executed, by the person authorized so to do by
resolution of the Board of Directors, or, in the absence of such authorization,
by the Chairman or Vice Chairman of the Board of Directors, Chief Executive
Officer, the President, or any executive Vice President.
ARTICLE VII.
SHARES OF STOCK
SECTION 7.1 FORM AND EXECUTION OF CERTIFICATES. Certificates for the
shares of stock of the corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. Every holder of stock in
the corporation shall be entitled to have a certificate signed by or in the
name of the corporation by the Chairman or Vice Chairman of the Board of
Directors, the Chief Executive Officer, the President or any executive Vice
President and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer, certifying the number of shares and the class or series
owned by him in the corporation. Where such certificate is countersigned by a
transfer agent other than the corporation or its employee, or by a registrar
other than the corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent, or registrar
before such certificate is issued, it may be issued with the same effect as if
he were such officer, transfer agent, or registrar at the date of issue.
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SECTION 7.2 LOST CERTIFICATES. A new certificate or certificates shall
be issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming the certificate of stock to be
lost, stolen, or destroyed. The corporation may require, as a condition
precedent to the issuance of a new certificate or certificates, the owner of
such lost, stolen, or destroyed certificate or certificates, or his legal
representative, to advertise the same in such manner as it shall require or to
give the corporation a surety bond in such form and amount as it may direct as
indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 7.3 TRANSFERS.
(a) Transfers of record of shares of stock of the
corporation shall be made only on its books by the holders thereof, in person
or by attorney duly authorized and upon the surrender of a properly endorsed
certificate or certificates for a like number of shares. Upon surrender to the
corporation or a transfer agent of the corporation of a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books. The Board of Directors shall have the
power and authority to make all such other rules and regulations as they may
deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the corporation.
(b) The corporation shall have power to enter into and
perform any agreement with any number of stockholders of any one or more
classes of stock of the corporation to restrict the transfer of shares of stock
of the corporation of any one or more classes owned by such stockholders in any
manner not prohibited by the Delaware General Corporation Law.
SECTION 7.4 FIXING RECORD DATES.
(a) In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, the Board of Directors may fix, in advance, a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record
date shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting. If no record date is fixed by the Board of Directors, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
(b) In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a
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record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be
not more than sixty (60) days prior to such action. If no record date is fixed
by the Board of Directors, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating thereto.
SECTION 7.5 REGISTERED STOCKHOLDERS. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
ARTICLE VIII.
OTHER SECURITIES OF THE CORPORATION
SECTION 8.1 EXECUTION OF OTHER SECURITIES. All bonds, debentures and
other corporate securities of the corporation, other than stock certificates
(covered in Section 7.1), may be signed by the Chairman or Vice Chairman of the
Board of Directors, the Chief Executive Officer, the President or any executive
Vice President, or such other person as may be authorized by the Board of
Directors, and the corporate seal impressed thereon or a facsimile of such seal
imprinted thereon and attested by the signature of the Secretary or an
Assistant Secretary, or the Treasurer or an Assistant Treasurer; provided,
however, that where any such bond, debenture or other corporate security shall
be authenticated by the manual signature of a trustee under an indenture
pursuant to which such bond, debenture or other corporate security shall be
issued, the signatures of the persons signing and attesting the corporate seal
on such bond, debenture or other corporate security may be the imprinted
facsimile of the signatures of such persons. Interest coupons appertaining to
any such bond, debenture or other corporate security, authenticated by a
trustee as aforesaid, shall be signed by the Treasurer or an Assistant
Treasurer of the corporation or such other person as may be authorized by the
Board of Directors, or bear imprinted thereon the facsimile signature of such
person. In case any officer who shall have signed or attested any bond,
debenture or other corporate security, or whose facsimile signature shall
appear thereon or on any such interest coupon, shall have ceased to be such
officer before any bond, debenture or other corporate security so signed or
attested shall have been delivered, such bond, debenture or other corporate
security nevertheless may be adopted by the corporation and issued and
delivered as though the person who signed the same or whose facsimile signature
shall have been used thereon had not ceased to be such officer of the
corporation.
ARTICLE IX.
DIVIDENDS
SECTION 9.1 DECLARATION OF DIVIDENDS. Dividends upon the capital
stock of the corporation, subject to the provisions of the Certificate of
Incorporation, if any, may be declared by the Board of Directors pursuant to
law at any regular or special meeting. Dividends may be
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paid in cash, in property, or in shares of the capital stock, subject to the
provisions of the Certificate of Incorporation.
SECTION 9.2 DIVIDEND RESERVE. Before payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
ARTICLE X.
FISCAL YEAR
The fiscal year of the corporation shall end as of December 31st,
unless otherwise fixed by resolution of the Board of Directors.
ARTICLE XI.
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND OTHER AGENTS
SECTION 11.1 DIRECTORS AND EXECUTIVE OFFICERS. The corporation shall
indemnify its Directors and executive officers to the fullest extent not
prohibited by the Delaware General Corporation Law; provided, however, that the
corporation may limit the extent of such indemnification by individual
contracts with its Directors and executive officers; and, provided, further,
that the corporation shall not be required to indemnify any Director or
executive officer in connection with any proceeding (or part thereof) initiated
by such person or any proceeding by such person against the corporation or its
Directors, officers, employees or other agents unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by
the Board of Directors of the corporation, or (iii) such indemnification is
provided by the corporation, in its sole discretion, pursuant to the powers
vested in the corporation under the Delaware General Corporation Law.
SECTION 11.2 OTHER OFFICERS, EMPLOYEES AND OTHER AGENTS. The
corporation shall have power to indemnify its other officers, employees and
other agents as set forth in the Delaware General Corporation Law.
SECTION 11.3 GOOD FAITH.
(a) For purposes of any determination under this Article
XI, a Director or executive officer shall be deemed to have acted in good faith
and in a manner such officer
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reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe that such officer's conduct was unlawful, if
such officer's action is based on information, opinions, reports and
statements, including financial statements and other financial data, in each
case prepared or presented by:
(i) one or more officers or employees of the
corporation whom the Director or executive officer believed
to be reliable and competent in the matters presented;
(ii) counsel, independent accountants or other
persons as to matters which the Director or executive officer
believed to be within such person's professional competence;
and
(iii) with respect to a Director, a committee of the
Board upon which such Director does not serve, as to matters
within such committee's designated authority, which committee
the Director believes to merit confidence; so long as, in
each case, the Director or executive officer acts without
knowledge that would cause such reliance to be unwarranted.
(b) The termination of any proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
equivalent shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which such person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect
to any criminal proceeding, that such person had reasonable cause to believe
that his conduct was unlawful.
(c) The provisions of this Section 11.3 shall not be
deemed to be exclusive or to limit in any way the circumstances in which a
person may be deemed to have met the applicable standard of conduct set forth
by the Delaware General Corporation Law.
SECTION 11.4 EXPENSES. The corporation shall advance, prior to the
final disposition of any proceeding, promptly following request therefor, all
expenses incurred by any Director or executive officer in connection with such
proceeding upon receipt of an undertaking by or on behalf of such person to
repay said amounts if it should be determined ultimately that such person is
not entitled to be indemnified under this Article XI or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
Section 11.5 of this Article XI, no advance shall be made by the corporation if
a determination is reasonably and promptly made (i) by the Board of Directors
by a majority vote of a quorum consisting of Directors who were not parties to
the proceeding, or (ii) if such quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, that the facts known to the decision-making
party at the time such determination is made demonstrate clearly and
convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the
corporation.
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SECTION 11.5 ENFORCEMENT. Without the necessity of entering into an
express contract, all rights to indemnification and advances to Directors and
executive officers under this Article XI shall be deemed to be contractual
rights and be effective to the same extent and as if provided for in a contract
between the corporation and the Director or executive officer. Any right to
indemnification or advances granted by this Article XI to a Director or
executive officer shall be enforceable by or on behalf of the person holding
such right in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no
disposition of such claim is made within ninety (90) days of request therefor.
The claimant in such enforcement action, if successful in whole or in part,
also shall be entitled to be paid the expense of prosecuting his claim. The
corporation shall be entitled to raise as a defense to any such action 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. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because such person has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
has not met the applicable standard of conduct.
SECTION 11.6 NON-EXCLUSIVITY OF RIGHTS. The rights conferred on any
person by this Article XI shall not be exclusive of any other right which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, Bylaws, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding office. The
corporation is specifically authorized to enter into individual contracts with
any or all of its Directors, officers, employees or agents respecting
indemnification and advances, to the fullest extent not prohibited by the
Delaware General Corporation Law.
SECTION 11.7 SURVIVAL OF RIGHTS. The rights conferred on any person
by this Article XI shall continue as to a person who has ceased to be a
Director, officer, employee or other agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
SECTION 11.8 INSURANCE. To the fullest extent permitted by the
Delaware General Corporation Law, the corporation, upon approval by the Board
of Directors, may purchase insurance on behalf of any person required or
permitted to be indemnified pursuant to this Article XI.
SECTION 11.9 AMENDMENTS. Any repeal or modification of this Article
XI shall only be prospective and shall not affect the rights under this Article
XI in effect at the time of the alleged occurrence of any action or omission to
act that is the cause of any proceeding against any agent of the corporation.
SECTION 11.10 SAVINGS CLAUSE. If this Article XI or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the corporation shall
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nevertheless indemnify each Director and executive officer to the full extent
not prohibited by any applicable portion of this Article XI that shall not have
been invalidated, or by any other applicable law.
SECTION 11.11 CERTAIN DEFINITIONS. For the purposes of this Article
XI, the following definitions shall apply:
(a) The term "proceeding" shall be broadly construed and
shall include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of testimony in,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(b) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees, fines,
amounts paid in settlement or judgment and any other costs and expenses of any
nature or kind incurred in connection with any proceeding.
(c) The term the "corporation" shall include, in addition to
the resulting corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article XI with respect to the resulting
or surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
(d) References to a "director," "officer," "employee," or
"agent" of the corporation shall include without limitation, situations where
such person is serving at the request of the corporation as a director,
officer, employee, trustee or agent of another corporation, partnership, joint
venture, trust or other enterprise.
(e) References to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise taxes assessed on
a person with respect to an employee benefit plan; and references to "serving
at the request of the corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on, or
involves services by, such director, officer, employee, or agent with respect
to an employee benefit plan, its participants, or beneficiaries; and a person
who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the corporation" as referred to in this Article XI.
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ARTICLE XII.
NOTICES
SECTION 12.1 NOTICE TO STOCKHOLDERS. Unless the Certificate of
Incorporation requires otherwise, whenever, under any provisions of these
Bylaws, notice is required to be given to any stockholder, it shall be given in
writing, timely and duly deposited in the United States mail, postage prepaid,
and addressed to such stockholder's last known post office address as shown by
the stock record of the corporation or its transfer agent.
SECTION 12.2 NOTICE TO DIRECTORS. Any notice required to be given to
any Director may be given by the method stated in Section 12.1, or by
facsimile, telex or telegram, except that such notice other than one which is
delivered personally shall be sent to such address as such Director shall have
filed in writing with the Secretary, or, in the absence of such filing, to the
last known post office address of such Director. It shall not be necessary that
the same method of giving notice be employed in respect of all Directors, but
one permissible method may be employed in respect of any one or more, and any
other permissible method or methods may be employed in respect of any other or
others.
SECTION 12.3 ADDRESS UNKNOWN. If no address of a stockholder or
Director be known, notice may be sent to the principal executive officer of the
corporation.
SECTION 12.4 AFFIDAVIT OF MAILING. An affidavit of mailing, executed
by a duly authorized and competent employee of the corporation or its transfer
agent appointed with respect to the class of stock affected, specifying the
name and address or the names and addresses of the stockholder or stockholders,
or Director or Directors, to whom any such notice or notices was or were given,
and the time and method of giving the same, shall be conclusive evidence of the
statements therein contained.
SECTION 12.5 TIME NOTICES DEEMED GIVEN. All notices given by mail, as
above provided, shall be deemed to have been given as at the time of mailing,
and all notices given by facsimile, telex or telegram shall be deemed to have
been given as of the sending time recorded at the time of transmission.
SECTION 12.6 FAILURE TO RECEIVE NOTICE. The period or limitation of
time within which any stockholder may exercise any option or right, or enjoy
any privilege or benefit, or be required to act, or within which any Director
may exercise any power or right, or enjoy any privilege, pursuant to any notice
sent such person in the manner above provided, shall not be affected or
extended in any manner by the failure of such stockholder or such Director to
receive such notice.
SECTION 12.7 NOTICE TO PERSON WITH WHOM COMMUNICATION IS UNLAWFUL.
Whenever notice is required to be given, under any provision of law or of the
Certificate of Incorporation or Bylaws of the corporation, to any person with
whom communication is unlawful, the giving of such notice to such person shall
not be required and there shall be no duty to apply to any governmental
authority or agency for a license or permit to give such notice to such person.
Any action or meeting which shall be taken or held without notice to any such
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person with whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action taken by
the corporation is such as to require the filing of a certificate under any
provision of the Delaware General Corporation Law, the certificate shall state,
if such is the fact and if notice is required, that notice was given to all
persons entitled to receive notice except such persons with whom communication
is unlawful.
SECTION 12.8 NOTICE TO PERSON WITH UNDELIVERABLE ADDRESS. Whenever
notice is required to be given, under any provision of law or the Certificate
of Incorporation or Bylaws of the corporation, to any stockholder to whom (i)
notice of two consecutive annual meetings, and all notices of meetings to such
person during the period between such two consecutive annual meetings, or (ii)
all, and at least two, payments (if sent by first class mail) of dividends or
interest on securities during a twelve-month period, have been mailed addressed
to such person at such person's address as shown on the records of the
corporation and have been returned undeliverable, the giving of such notice to
such person shall not be required. Any action or meeting which shall be taken
or held without notice to such person shall have the same force and effect as
if such notice had been duly given. If any such person shall deliver to the
corporation a written notice setting forth such person's then current address,
the requirement that notice be given to such person shall be reinstated. In the
event that the action taken by the corporation is such as to require the filing
of a certificate under any provision of the Delaware General Corporation Law,
the certificate need not state that notice was not given to persons to whom
notice was not required to be given pursuant to this paragraph.
ARTICLE XIII.
AMENDMENTS
SECTION 13.1 AMENDMENTS. Except as otherwise provided in the
Certificate of Incorporation, these Bylaws may be altered, amended or repealed,
or new Bylaws may be adopted, by the holders of a majority of the outstanding
voting shares or by the Board of Directors, when such power is conferred upon
the Board of Directors by the Certificate of Incorporation, at any regular
meeting of the stockholders or of the Board of Directors or at any special
meeting of the stockholders or of the Board of Directors if notice of such
alteration, amendment, repeal or adoption of new Bylaws be contained in the
notice of such special meeting. If the power to adopt, amend or repeal Bylaws
is conferred upon the Board of Directors by the Certificate of Incorporation,
it shall not divest or limit the power of the stockholders to adopt, amend or
repeal Bylaws.
SECTION 13.2 APPLICATION OF BYLAWS. In the event that any provisions
of these Bylaws is or may be in conflict with any law of the United States, of
the state of incorporation of the corporation or of any other governmental body
or power having jurisdiction over this corporation, or over the subject matter
to which such provision of these Bylaws applies, or may apply, such provision
of these Bylaws shall be inoperative to the extent only that the operation
thereof unavoidably conflicts with such law, and shall in all other respects be
in full force and effect.
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ARTICLE XIV.
LOANS TO OFFICERS
The corporation may lend money to, or guarantee any obligation of, or
otherwise assist any officer or other employee of the corporation or of its
subsidiaries, including any officer or employee who is a Director of the
corporation or its subsidiaries, whenever, in the judgment of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to
benefit the corporation. The loan, guarantee or other assistance may be with or
without interest and may be unsecured, or secured in such manner as the Board
of Directors shall approve, including, without limitation, a pledge of shares
of stock of the corporation. Nothing in this Bylaw shall be deemed to deny,
limit or restrict the powers of guaranty or warranty of the corporation at
common law or under statute.
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