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EXHIBIT 3.4
AMENDED AND RESTATED BY-LAWS
OF
CORECHANGE, INC.
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TABLE OF CONTENTS
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ARTICLE I STOCKHOLDERS....................................................................................1
1.1 Place of Meetings...............................................................................1
1.2 Annual Meeting..................................................................................1
1.3 Special Meetings................................................................................1
1.4 Notice of Meetings..............................................................................1
1.5 Voting List.....................................................................................1
1.6 Quorum..........................................................................................2
1.7 Adjournments....................................................................................2
1.8 Voting and Proxies..............................................................................2
1.9 Action at Meeting...............................................................................2
1.10 Nomination of Directors.........................................................................2
1.11 Notice of Business at Annual Meetings...........................................................4
1.12 Conduct of Meetings.............................................................................5
1.13 No Action by Written Consent in Lieu of a Meeting...............................................6
ARTICLE II DIRECTORS.......................................................................................6
2.1 General Powers..................................................................................6
2.2 Number, Election and Qualification..............................................................6
2.3 Classes of Directors............................................................................6
2.4 Terms of Office.................................................................................6
2.5 Allocation of Directors Among Classes in the Event of Increases or Decreases in
the Authorized Number of Directors .............................................................7
2.6 Quorum..........................................................................................7
2.7 Action at Meeting...............................................................................7
2.8 Removal.........................................................................................7
2.9 Vacancies.......................................................................................7
2.10 Resignation.....................................................................................8
2.11 Regular Meetings................................................................................8
2.12 Special Meetings................................................................................8
2.13 Notice of Special Meetings......................................................................8
2.14 Meetings by Telephone Conference Calls..........................................................8
2.15 Action by Written Consent.......................................................................8
2.16 Committees......................................................................................8
2.17 Compensation of Directors.......................................................................9
ARTICLE III OFFICERS........................................................................................9
3.1 Titles..........................................................................................9
3.2 Election........................................................................................9
3.3 Qualification...................................................................................9
3.4 Tenure..........................................................................................9
3.5 Resignation and Removal.........................................................................9
3.6 Vacancies......................................................................................10
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3.7 Chairman of the Board..........................................................................10
3.8 President......................................................................................10
3.9 Vice Presidents................................................................................10
3.10 Secretary and Assistant Secretaries............................................................10
3.11 Treasurer and Assistant Treasurers.............................................................11
3.12 Salaries.......................................................................................11
ARTICLE IV CAPITAL STOCK..................................................................................11
4.1 Issuance of Stock..............................................................................11
4.2 Certificates of Stock..........................................................................11
4.3 Transfers......................................................................................12
4.4 Lost, Stolen or Destroyed Certificates.........................................................12
4.5 Record Date....................................................................................12
ARTICLE V GENERAL PROVISIONS.............................................................................13
5.1 Fiscal Year....................................................................................13
5.2 Corporate Seal.................................................................................13
5.3 Execution of Instruments.......................................................................13
5.4 Waiver of Notice...............................................................................13
5.5 Voting of Securities...........................................................................13
5.6 Evidence of Authority..........................................................................13
5.7 Certificate of Incorporation...................................................................14
5.8 Transactions with Interested Parties...........................................................14
5.9 Severability...................................................................................14
5.10 Pronouns.......................................................................................14
ARTICLE VI AMENDMENTS.....................................................................................14
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ARTICLE I
STOCKHOLDERS
1.1 PLACE OF MEETINGS. All meetings of stockholders shall be held at such
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors, the Chairman of the Board or the President or,
if not so designated, at the registered office of the corporation.
1.2 ANNUAL MEETING. The annual meeting of stockholders for the election of
directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors, the Chairman of the Board or the President (which date shall not be a
legal holiday in the place where the meeting is to be held) at the time and
place to be fixed by the Board of Directors, the Chairman of the Board or the
President and stated in the notice of the meeting. If no annual meeting is held
in accordance with the foregoing provisions, the Board of Directors shall cause
the meeting to be held as soon thereafter as is convenient. If no annual meeting
is held in accordance with the foregoing provisions, a special meeting may be
held in lieu of the annual meeting, and any action taken at that special meeting
shall have the same effect as if it had been taken at the annual meeting, and in
such case all references in these By-laws to the annual meeting of the
stockholders shall be deemed to refer to such special meeting.
1.3 SPECIAL MEETINGS. Special meetings of stockholders for any purpose or
purposes may be called at any time by action of the Board of Directors, the
Chairman of the Board or the President, but such special meetings may not be
called by any other person or persons. Business transacted at any special
meeting of stockholders shall be limited to matters relating to the purpose or
purposes stated in the notice of meeting.
1.4 NOTICE OF MEETINGS. Except as otherwise provided by law, written notice
of each meeting of stockholders, whether annual or special, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. The notices of all meetings shall
state the place, date and hour of the meeting. The notice of a special meeting
shall state, in addition, the purpose or purposes for which the meeting is
called. If mailed, notice shall be deemed given when deposited in the United
States mail, postage prepaid, directed to the stockholder at such stockholder's
address as it appears on the records of the corporation.
1.5 VOTING LIST. The Secretary shall prepare, at least 10 days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and
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place of the meeting during the whole time of the meeting, and may be inspected
by any stockholder who is present.
1.6 QUORUM. Except as otherwise provided by law, the Certificate of
Incorporation or these By-laws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
the meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business. A quorum, once established at a meeting,
shall not be broken by the withdrawal of enough votes to leave less than a
quorum.
1.7 ADJOURNMENTS. Any meeting of stockholders may be adjourned from time to
time to any other time and to any other place at which a meeting of stockholders
may be held under these By-laws by the stockholders present or represented at
the meeting and entitled to vote, although less than a quorum, or, if no
stockholder is present, by any officer entitled to preside at or to act as
secretary of such meeting. It shall not be necessary to notify any stockholder
of any adjournment of less than 30 days if the time and place of the adjourned
meeting are announced at the meeting at which adjournment is taken, unless after
the adjournment a new record date is fixed for the adjourned meeting. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
1.8 VOTING AND PROXIES. Each stockholder shall have one vote for each share
of stock entitled to vote held of record by such stockholder and a proportionate
vote for each fractional share so held, unless otherwise provided by law or the
Certificate of Incorporation. Each stockholder of record entitled to vote at a
meeting of stockholders may vote in person or may authorize another person or
persons to vote for him by a proxy executed in writing (or in such other manner
permitted by the General Corporation Law of Delaware) by the stockholder or his
authorized agent and delivered (including by electronic transmission) to the
Secretary of the corporation. No such proxy shall be voted upon after three
years from the date of its execution, unless the proxy expressly provides for a
longer period.
1.9 ACTION AT MEETING. When a quorum is present at any meeting, any matter
to be voted upon by the stockholders at such meeting shall be decided by the
affirmative vote of the holders of a majority of the stock present or
represented and voting on such matter (or if there are two or more classes of
stock entitled to vote as separate classes, then in the case of each such class,
the holders of a majority of the stock of that class present or represented and
voting on such matter), except when a different vote is required by law, the
Certificate of Incorporation or these By-laws. When a quorum is present at any
meeting, any election by stockholders shall be determined by a plurality of the
votes cast by the stockholders entitled to vote on the election.
1.10 NOMINATION OF DIRECTORS.
(a) Except for (i) any directors entitled to be elected by the holders
of preferred stock or any other securities of the corporation (other than common
stock) and (ii) any directors elected in accordance with Section 2.9 hereof by
the Board of Directors to fill a vacancy, only persons who are nominated in
accordance with the procedures in this Section 1.10 shall be eligible for
election as directors. Nomination for election to the Board of Directors of the
corporation at a meeting of stockholders may be made (i) by or at the direction
of the Board
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of Directors or (ii) by any stockholder of the corporation who (x) complies with
the notice procedures set forth in Section 1.10(b) and (y) is a stockholder of
record on the date of the giving of such notice and on the record date for the
determination of stockholders entitled to vote at such meeting.
(b) To be timely, a stockholder's notice must be received by the
Secretary at the principal executive offices of the corporation as follows: (x)
in the case of an election of directors at an annual meeting of stockholders,
not less than 60 days nor more than 90 days prior to the first anniversary of
the preceding year's annual meeting; PROVIDED, HOWEVER, that (i) in the case of
the annual meeting of stockholders of the corporation to be held in 2001 or (ii)
in the event that the date of the annual meeting in any other year is advanced
by more than 20 days, or delayed by more than 60 days, from the first
anniversary of the preceding year's annual meeting, a stockholder's notice must
be so received not earlier than the ninetieth day prior to such annual meeting
and not later than the close of business on the later of (A) the sixtieth day
prior to such annual meeting and (B) the tenth day following the day on which
notice of the date of such annual meeting was mailed or public disclosure of the
date of such annual meeting was made, whichever first occurs; or (y) in the case
of an election of directors at a special meeting of stockholders, not earlier
than the ninetieth day prior to such special meeting and not later than the
close of business on the later of (i) the sixtieth day prior to such special
meeting and (ii) the tenth day following the day on which notice of the date of
such special meeting was mailed or public disclosure of the date of such special
meeting was made, whichever first occurs.
The stockholder's notice to the Secretary shall set forth: (a) as to each
proposed nominee (i) such person's name, age, business address and, if known,
residence address, (ii) such person's principal occupation or employment, (iii)
the class and number of shares of stock of the corporation which are
beneficially owned by such person, and (iv) any other information concerning
such person that must be disclosed as to nominees in proxy solicitations
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended; (b) as to the stockholder giving the notice (i) such stockholder's name
and address, as they appear on the corporation's books, (ii) the class and
number of shares of stock of the corporation which are owned, beneficially and
of record, by such stockholder, (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any other
person or persons (including their names) pursuant to which the nomination(s)
are to be made by such stockholder and (iv) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate
the person(s) named in its notice; and (c) as to the beneficial owner, if any,
on whose behalf the nomination is being made (i) such beneficial owner's name
and address, (ii) the class and number of shares of stock of the corporation
which are beneficially owned by such beneficial owner, and (iii) a description
of all arrangements or understandings between such beneficial owner and each
proposed nominee and any other person or persons (including their names)
pursuant to which the nomination(s) are to be made. In addition, to be
effective, the stockholder's notice must be accompanied by the written consent
of the proposed nominee to serve as a director if elected. The corporation may
require any proposed nominee to furnish such other information as may reasonably
be required to determine the eligibility of such proposed nominee to serve as a
director of the corporation.
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(c) The chairman of any meeting shall, if the facts warrant, determine that
a nomination was not made in accordance with the provisions of this Section
1.10, and if he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
(d) Except as otherwise required by law, nothing in this Section 1.10 shall
obligate the corporation or the Board of Directors to include in any proxy
statement or other stockholder communication distributed on behalf of the
corporation or the Board of Directors information with respect to any nominee
for director submitted by a stockholder.
1.11 NOTICE OF BUSINESS AT ANNUAL MEETINGS.
(a) At any 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 (i) specified in
the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors, (ii) otherwise properly brought before
the meeting by or at the direction of the Board of Directors, or (iii)
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, (i) if such
business relates to the election of directors of the corporation, the
procedures in Section 1.10 must be complied with and (ii) if such business
relates to any other matter, the stockholder must (x) have given timely
notice thereof in writing to the Secretary in accordance with the procedures
set forth in Section 1.11(b) and (y) be a stockholder of record on the date
of the giving of such notice and on the record date for the determination of
stockholders entitled to vote at such annual meeting.
(b) To be timely, a stockholder's notice must be received by the
Secretary at the principal executive offices of the corporation not less than
60 days nor more than 90 days prior to the first anniversary of the preceding
year's annual meeting; PROVIDED, HOWEVER, that (i) in the case of the annual
meeting of stockholders of the corporation to be held in 2001 or (ii) in the
event that the date of the annual meeting in any other year is advanced by
more than 20 days, or delayed by more than 60 days, from the first
anniversary of the preceding year's annual meeting, a stockholder's notice
must be so received not earlier than the ninetieth day prior to such annual
meeting and not later than the close of business on the later of (A) the
sixtieth day prior to such annual meeting and (B) the tenth day following the
day on which notice of the date of such annual meeting was mailed or public
disclosure of the date of such annual meeting was made, whichever first
occurs.
The 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) the name
and address, as they appear on the corporation's books, of the stockholder
proposing such business, and the name and address of the beneficial owner, if
any, on whose behalf the proposal is made, (iii) the class and number of shares
of stock of the corporation which are owned, of record and beneficially, by the
stockholder and beneficial owner, if any, (iv) a description of all arrangements
or understandings between such stockholder or such beneficial owner, if any, and
any other person or persons (including their names) in connection with the
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proposal of such business by such stockholder and any material interest of the
stockholder or such beneficial owner, if any, in such business, and (v) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting. Notwithstanding
anything in these By-laws to the contrary, no business shall be conducted at any
annual meeting of stockholders except in accordance with the procedures set
forth in this Section 1.11; provided that any stockholder proposal which
complies with Rule 14a-8 of the proxy rules (or any successor provision)
promulgated under the Securities Exchange Act of 1934, as amended, and is to be
included in the corporation's proxy statement for an annual meeting of
stockholders shall be deemed to comply with the requirements of this Section
1.11.
(c) The chairman of any meeting shall, if the facts warrant, determine
that business was not properly brought before the meeting in accordance with the
provisions of this Section 1.11, and if he should so determine, he shall so
declare to the meeting and such business shall not be brought before the
meeting.
1.12 CONDUCT OF MEETINGS.
(a) CHAIRMAN OF MEETING. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his absence by the Vice
Chairman of the Board, if any, or in his absence by the President, or in his
absence by a Vice President, or in the absence of all of the foregoing persons
by a chairman designated by the Board of Directors, or in the absence of such
designation by a chairman chosen by vote of the stockholders at the meeting. The
Secretary shall act as secretary of the meeting, but in his absence the chairman
of the meeting may appoint any person to act as secretary of the meeting.
(b) RULES, REGULATIONS AND PROCEDURES. The Board of Directors of the
corporation may adopt by resolution such rules, regulations and procedures for
the conduct of any meeting of stockholders of the corporation as it shall deem
appropriate. Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the chairman of any meeting of
stockholders 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 appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as shall be determined; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or comments by
participants. 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 the rules of parliamentary procedure.
(c) CLOSING OF POLLS. The chairman of the meeting shall announce at the
meeting when the polls for each matter to be voted upon at the meeting will be
opened and closed. If no announcement is made, the polls shall be deemed to have
opened when the meeting
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is convened and closed upon the final adjournment of the meeting. After the
polls close, no ballots, proxies or votes or any revocations or changes thereto
may be accepted.
(d) INSPECTORS OF ELECTION. In advance of any meeting of stockholders,
the Board of Directors, the Chairman of the Board or the President shall appoint
one or more inspectors or election to act at the meeting and make a written
report thereof. One or more other persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is present, ready and willing to act at a meeting of stockholders, the
chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Unless otherwise required by law, inspectors may be officers, employees
or agents of the corporation. Each inspector, before entering upon the discharge
of his duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability. The
inspector shall have the duties prescribed by law and shall take charge of the
polls and, when the vote in completed, shall make a certificate of the result of
the vote taken and of such other facts as may be required by law.
1.13 NO ACTION BY WRITTEN CONSENT IN LIEU OF A MEETING. Stockholders of the
corporation may not take any action by written consent in lieu of a meeting.
ARTICLE II
DIRECTORS
2.1 GENERAL POWERS. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law, the
Certificate of Incorporation or these By-laws. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board until the vacancy is filled.
2.2 NUMBER, ELECTION AND QUALIFICATION. The number of directors which shall
constitute the whole Board of Directors shall be determined from time to time by
resolution of the Board of Directors, but in no event shall be less than three.
The directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. Directors need not be
stockholders of the corporation.
2.3 CLASSES OF DIRECTORS. The Board of Directors shall be and is divided
into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class. If a fraction is contained in
the quotient arrived at by dividing the authorized number of directors by three,
then, if such fraction is one-third, the extra director shall be a member of
Class I, and if such fraction is two-thirds, one of the extra directors shall be
a member of Class I and one of the extra directors shall be a member of Class
II, unless otherwise provided by resolution of the Board of Directors.
2.4 TERMS OF OFFICE. Each director shall serve for a term ending on the
date of the third annual meeting following the annual meeting at which such
director was elected; PROVIDED, that each initial director in Class I shall
serve for a term expiring at the corporation's annual
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meeting of stockholders held in 2001; each initial director in Class II shall
serve for a term expiring at the corporation's annual meeting of stockholders
held in 2002; and each initial director in Class III shall serve for a term
expiring at the corporation's annual meeting of stockholders held in 2003;
PROVIDED FURTHER, that the term of each director shall continue until the
election and qualification of his successor and be subject to his earlier death,
resignation or removal.
2.5 ALLOCATION OF DIRECTORS AMONG CLASSES IN THE EVENT OF INCREASES OR
DECREASES IN THE AUTHORIZED NUMBER OF DIRECTORS. In the event of any increase or
decrease in the authorized number of directors, (i) each director then serving
as such shall nevertheless continue as a director of the class of which he is a
member until the expiration of his current term, subject to his earlier death,
resignation or removal and (ii) the newly created or eliminated directorships
resulting from such increase or decrease shall be apportioned by the Board of
Directors among the three classes of directors in accordance with the provisions
of Section 2.3. To the extent possible, consistent with the provisions of
Section 2.3, any newly created directorships shall be added to those classes
whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of offices are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time by
resolution of the Board of Directors.
2.6 QUORUM. A majority of the directors at any time in office shall
constitute a quorum for the transaction of business. In the event one or more of
the directors shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each director so disqualified, provided that
in no case shall less than one-third of the number of directors fixed pursuant
to Section 2.2 constitute a quorum. If at any meeting of the Board of Directors
there shall be less than such a quorum, a majority of the directors present may
adjourn the meeting from time to time without further notice other than
announcement at the meeting, until a quorum shall be present.
2.7 ACTION AT MEETING. Every act or decision done or made by a majority of
the directors present at a meeting duly held at which a quorum is present shall
be regarded as the act of the Board of Directors unless a greater number is
required by law, by the Certificate of Incorporation or by these By-laws.
2.8 REMOVAL. Directors of the corporation may be removed only for cause by
the affirmative vote of the holders of at least seventy-five percent (75%) of
the votes which all the stockholders would be entitled to cast in any annual
election of directors.
2.9 VACANCIES. Any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the Board, shall be filled
only by vote of a majority of the directors then in office, although less than a
quorum, or by a sole remaining director. A director elected to fill a vacancy
shall be elected to hold office until the next election of the class for which
such director shall have been chosen, subject to the election and qualification
of his successor and to his earlier death, resignation or removal.
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2.10 RESIGNATION. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the Chairman of the
Board, the President or the Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some later time or upon the
happening of some later event.
2.11 REGULAR MEETINGS. Regular meetings of the Board of Directors may be
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.12 SPECIAL MEETINGS. Special meetings of the Board of Directors may be
held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board, the President, two or more directors, or
by one director in the event that there is only a single director in office.
2.13 NOTICE OF SPECIAL MEETINGS. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of the
directors calling the meeting. Notice shall be duly given to each director (i)
by giving notice to such director in person or by telephone at least 24 hours in
advance of the meeting, (ii) by sending a telegram, telecopy, telex or
electronic mail, or delivering written notice by hand, to his last known
business, home or electronic mail address at least 48 hours in advance of the
meeting, or (iii) by sending written notice, via first-class mail or reputable
overnight courier, to his last known business or home address at least 72 hours
in advance of the meeting. A notice or waiver of notice of a meeting of the
Board of Directors need not specify the purposes of the meeting.
2.14 MEETINGS BY TELEPHONE CONFERENCE CALLS. Directors may participate in
meetings of the Board of Directors or any committee thereof by means of
conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and participation by
such means shall constitute presence in person at such meeting.
2.15 ACTION BY WRITTEN CONSENT. 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 or committee, as the
case may be, consent to the action in writing, and the written consents are
filed with the minutes of proceedings of the Board or committee.
2.16 COMMITTEES. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members of the committee 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. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of law, shall have and may
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exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation and may authorize the
seal of the corporation to be affixed to all papers which may require it. Each
such committee shall keep minutes and make such reports as the Board of
Directors may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these By-laws for the Board of Directors.
2.17 COMPENSATION OF DIRECTORS. Directors may be paid such compensation for
their services and such reimbursement for expenses of attendance at meetings as
the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE III
OFFICERS
3.1 TITLES. The officers of the corporation shall consist of a President, a
Secretary, a Treasurer and such other officers with such other titles as the
Board of Directors shall determine, including a Chairman of the Board, a Vice
Chairman of the Board, and one or more Vice Presidents, Assistant Treasurers,
and Assistant Secretaries. The Board of Directors may appoint such other
officers as it may deem appropriate.
3.2 ELECTION. The President, Treasurer and Secretary shall be elected
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3.3 QUALIFICATION. No officer need be a stockholder. Any two or more
offices may be held by the same person.
3.4 TENURE. Except as otherwise provided by law, by the Certificate of
Incorporation or by these By-laws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in the
resolution electing or appointing him, or until his earlier death, resignation
or removal.
3.5 RESIGNATION AND REMOVAL. Any officer may resign by delivering his
written resignation to the corporation at its principal office or to the Chief
Executive Officer or the Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some later time or upon the
happening of some later event.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following his
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resignation or removal, or any right to damages on account of such removal,
whether his compensation be by the month or by the year or otherwise, unless
such compensation is expressly provided in a duly authorized written agreement
with the corporation.
3.6 VACANCIES. The Board of Directors may fill any vacancy occurring in any
office for any reason and may, in its discretion, leave unfilled for such period
as it may determine any offices other than those of President, Treasurer and
Secretary. Each such successor shall hold office for the unexpired term of his
predecessor and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
3.7 CHAIRMAN OF THE BOARD. The Board of Directors may appoint from its
members a Chairman of the Board. If the Board of Directors appoints a Chairman
of the Board, he shall perform such duties and possess such powers as are
assigned to him by the Board of Directors and, if the Chairman of the Board is
also designated as the corporation's Chief Executive Officer, he shall have the
powers and duties of the Chief Executive Officer prescribed in Section 3.8 of
these By-laws. Unless otherwise provided by the Board of Directors, the Chairman
of the Board shall preside at all meetings of the Board of Directors and
stockholders.
3.8 PRESIDENT. Unless the Board of Directors has designated the Chairman of
the Board as the corporation's Chief Executive Officer, the President shall be
the Chief Executive Officer of the corporation and, as such, shall have general
charge and supervision of the business of the Corporation subject to the
direction of the Board of Directors. The President shall perform such other
duties and shall have such other powers as the Board of Directors and the Chief
Executive Officer (if the Chairman of the Board is serving in such position) may
from time to time prescribe.
3.9 VICE PRESIDENTS. Any Vice President shall perform such duties and
possess such powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe. In the event of the absence, inability or refusal
to act of the Chief Executive Officer, the President (if he is not the Chief
Executive Officer), and then the Vice President (or if there shall be more than
one, the Vice Presidents in the order determined by the Board of Directors),
shall perform the duties of the Chief Executive Officer and when so performing
shall have all the powers of and be subject to all the restrictions upon the
Chief Executive Officer. The Board of Directors may assign to any Vice President
the title of Executive Vice President, Senior Vice President or any other title
selected by the Board of Directors.
3.10 SECRETARY AND ASSISTANT SECRETARIES. The Secretary shall perform such
duties and shall have such powers as the Board of Directors or the Chief
Executive Officer may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the office of
the secretary, including without limitation the duty and power to give notices
of all meetings of stockholders and special meetings of the Board of Directors,
to attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on documents.
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Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the Chief Executive Officer or the Secretary may from
time to time prescribe. In the event of the absence, inability or refusal to act
of the Secretary, the Assistant Secretary (or if there shall be more than one,
the Assistant Secretaries in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the chairman of the meeting shall designate a
temporary secretary to keep a record of the meeting.
3.11 TREASURER AND ASSISTANT TREASURERS. The Treasurer shall perform such
duties and shall have such powers as may from time to time be assigned to him by
the Board of Directors or the Chief Executive Officer. In addition, the
Treasurer shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and power to keep and
be responsible for all funds and securities of the corporation, to deposit funds
of the corporation in depositories selected in accordance with these By-laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the Chief Executive Officer or the Treasurer may from
time to time prescribe. In the event of the absence, inability or refusal to act
of the Treasurer, the Assistant Treasurer (or if there shall be more than one,
the Assistant Treasurers in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Treasurer.
3.12 SALARIES. Officers of the corporation shall be entitled to such
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE IV
CAPITAL STOCK
4.1 ISSUANCE OF STOCK. Unless otherwise voted by the stockholders and
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
4.2 CERTIFICATES OF STOCK. Every holder of stock of the corporation shall
be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him in the corporation. Each such certificate shall be signed by, or in the name
of the corporation by, the Chairman or Vice Chairman, if any, of the Board of
Directors, or the President or a Vice President, and the Treasurer or an
Assistant
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Treasurer, or the Secretary or an Assistant Secretary of the corporation. Any or
all of the signatures on the certificate may be a facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, these By-laws,
applicable securities laws or any agreement among any number of stockholders or
among such holders and the corporation shall have conspicuously noted on the
face or back of the certificate either the full text of the restriction or a
statement of the existence of such restriction.
There shall be set forth on the face or back of each certificate
representing shares of such class or series of stock of the corporation a
statement that the corporation will furnish without charge to each stockholder
who so requests a copy of the full text of the powers, designations, preferences
and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of
such preferences and/or rights.
4.3 TRANSFERS. Except as otherwise established by rules and regulations
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation
or by these By-laws, the corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote with respect
to such stock, regardless of any transfer, pledge or other disposition of such
stock until the shares have been transferred on the books of the corporation in
accordance with the requirements of these By-laws.
4.4 LOST, STOLEN OR DESTROYED CERTIFICATES. The corporation may issue a new
certificate of stock in place of any previously issued certificate alleged to
have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
4.5 RECORD DATE. The Board of Directors may fix in advance a date as a
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other action to
which such record date relates.
If no record date is fixed, 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 before the day on which notice is given, or, if
notice is waived, at the close of business on the day before
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the day on which the meeting is held. If no record date is fixed, the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating to such purpose.
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.
ARTICLE V
GENERAL PROVISIONS
5.1 FISCAL YEAR. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the first
day of January of each year and end on the last day of December in each year.
5.2 CORPORATE SEAL. The corporate seal shall be in such form as shall be
approved by the Board of Directors.
5.3 EXECUTION OF INSTRUMENTS. The Chief Executive Officer and the President
shall each, acting singly, have power and authority to execute and deliver on
behalf and in the name of the corporation any instrument requiring the signature
of an officer of the corporation which may be authorized by the Board of
Directors, except where the execution and delivery of such an instrument shall
be expressly delegated by the Board of Directors to some other officer or agent
of the corporation. The other officers of the corporation may execute and
deliver on behalf and in the name of the corporation any instrument requiring
the signature of an officer of the corporation when so authorized by the Board
of Directors.
5.4 WAIVER OF NOTICE. Whenever any notice whatsoever is required to be
given by law, by the Certificate of Incorporation or by these By-laws, a waiver
of such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telecopy or any other available
method, whether before, at or after the time stated in such waiver, or the
appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
5.5 VOTING OF SECURITIES. Except as the Board of Directors may otherwise
designate, the President or the Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-fact for this
corporation (with or without power of substitution) at any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation.
5.6 EVIDENCE OF AUTHORITY. A certificate by the Secretary, or an Assistant
Secretary, or a temporary Secretary, as to any action taken by the stockholders,
directors, a committee or any officer or representative of the corporation shall
as to all persons who rely on the certificate in good faith be conclusive
evidence of such action.
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5.7 CERTIFICATE OF INCORPORATION. All references in these By-laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.8 TRANSACTIONS WITH INTERESTED PARTIES. No contract or transaction
between the corporation and one or more of the directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors at which the contract or transaction is authorized or solely
because his or their votes are counted for such purpose, if:
(a) 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 or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum;
(b) 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
(c) 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 of the Board of Directors, or the stockholders.
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 which
authorizes the contract or transaction.
5.9 SEVERABILITY. Any determination that any provision of these By-laws
is for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-laws.
5.10 PRONOUNS. All pronouns used in these By-laws shall be deemed to
refer to the masculine, feminine or neuter, singular or plural, as the identity
of the person or persons may require.
ARTICLE VI
AMENDMENTS
These By-laws may be altered, amended or repealed, in whole or in part, or
new By-laws may be adopted by the Board of Directors or by the stockholders as
provided in the Certificate of Incorporation.
