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EXHIBIT 3.3
AMENDED AND RESTATED
BYLAWS
OF
E-CENTIVES, INC.
1. OFFICES
1.1. REGISTERED OFFICE
The registered office of the Corporation shall be in Wilmington,
Delaware, and the initial registered agent in charge thereof shall be
Corporation Service Company.
1.2. OTHER OFFICES
The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the Board of Directors of the
Corporation (the "Board") may from time to time determine or as may be necessary
or useful in connection with the business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. PLACE OF MEETINGS
All meetings of the stockholders shall be held at such place as
may be fixed from time to time by the Board, the Chairman, the Chief Executive
Officer or the President.
2.2. ANNUAL MEETINGS
(a) The Corporation shall hold annual meetings of stockholders
on such date and at such time as shall be designated from time to time by the
Board, the Chairman, the Chief Executive Officer or the President. At each
annual meeting, the stockholders shall elect by a plurality vote (as provided in
Section 2.9 hereof) directors to succeed those whose terms expire at the time of
the annual meeting. The nomination of persons for election to the Board and the
proposal of any other business to be transacted at an annual meeting may be made
only (i) by or at the direction of the Board or (ii) by any stockholder of
record who gives notice in accordance with the procedures set forth in paragraph
(b) of this Section 2.2 and who is a stockholder of record both on the date of
giving such notice and on the record date for the determination of stockholders
entitled to vote at such annual meeting; only persons thereby nominated shall be
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eligible to serve as directors and only business thereby proposed shall be
transacted at an annual meeting. The presiding officer of the annual meeting
shall determine whether a nomination or any proposal of business complies or
complied with this Section 2.2.
(b) For nominations and other business to be brought properly
before an annual meeting by a stockholder pursuant to clause (ii) of paragraph
(a) of this Section 2.2, the stockholder must deliver notice to the Secretary of
the Corporation at the principal executive offices of the Corporation in
accordance with this Section 2.2(b). The notice must be received by the
Secretary not less than 60 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of the annual meeting is advanced by more than 30 days
or delayed by more than 60 days from such anniversary date, the stockholder must
so deliver the notice not earlier than the 90th day prior to such annual meeting
and not later than the close of business on the later of the 60th day prior to
such annual meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made; provided further,
however, that in the event that the number of directors to be elected to the
Board is increased and there is no public announcement naming all of the
nominees for director or specifying the size of the increased Board made by the
Corporation at least 70 days prior to the first anniversary of the preceding
annual meeting, with respect to nominees for any new position created by the
increase, the stockholder must so deliver the notice not later than the close of
business on the tenth day following the day on which such public announcement is
first made. The stockholder's notice must set forth: (i) as to each person whom
the stockholder proposes to nominate for election or reelection as a director,
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors pursuant to Section 14(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations thereunder (together with such person's written consent to
being named in the proxy statement as a nominee and to serving as a director if
elected), whether or not the Corporation is then subject to Section 14(a) and
such rules and regulations; (ii) as to any other business that the stockholder
proposes to transact at the meeting, a brief description of the business desired
to be brought before the meeting, the reasons for conducting the business at the
meeting and any material interest in the business of the stockholder and of the
beneficial owner, if any, on whose behalf the proposal is made; and (iii) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made, the name and address of the
stockholder, as they appear on the Corporation's books, and of such beneficial
owner, the class and number of shares of the Corporation that are owned
beneficially and of record by such stockholder and such beneficial owner and a
representation that the stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting. For purposes of
this Section 2.2 and Section 2.3 hereof, a "public announcement" means
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable news service, in a document publicly filed with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act (or their successor provisions), or in a notice of meeting or proxy
statement mailed generally to the Corporation's stockholders. In giving notice
under this Section 2.2, a stockholder must also comply with state law and the
Exchange Act (and the rules and regulations thereunder). Nothing in this Section
2.2 shall be deemed to affect the rights of a stockholder to
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request inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 (or its successor provision) under the Exchange Act.
2.3. SPECIAL MEETINGS
Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute, may be called only by the
Board, the Chairman, the Chief Executive Officer or the President or by the
stockholders of the Corporation upon the written request of the holders of at
least 40% of the securities of the Corporation outstanding and entitled to vote
generally in the election of directors. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice
relating to such meeting (or to the purposes for which the meeting is called if
such notice is waived or is not required as provided in the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law") or these
Bylaws). In the case of a special meeting of stockholders called for the purpose
of electing directors, nominations may be made only (i) by or at the direction
of the Board or (ii) by any stockholder of record who delivers to the Secretary,
no later than the tenth day following the day on which public announcement of
the special meeting is made, a notice that complies with and is delivered in
accordance with Section 2.2(b) above.
2.4. NOTICE OF MEETINGS
Written notice of any meeting of stockholders, stating the
place, date and hour of the meeting, and (if it is a special meeting) the
purpose or purposes for which the meeting is called, shall be given to each
stockholder entitled to vote at such meeting not less than 45 nor more than 60
days before the date of the meeting (except to the extent that such notice is
waived or is not required as provided in the Delaware General Corporation Law or
these Bylaws). Such notice shall be given in accordance with, and shall be
deemed effective as set forth in, Section 222 (or any successor section) of the
Delaware General Corporation Law.
2.5. WAIVERS OF NOTICE
Whenever the giving of any notice is required by statute, the
Corporation's certificate of incorporation (as amended and restated from time to
time, the "Certificate of Incorporation") or these Bylaws, a waiver thereof, in
writing and delivered to the Corporation, signed by the person or persons
entitled to said notice, whether before or after the event as to which such
notice is required, shall be deemed equivalent to notice. Attendance of a
stockholder at a meeting shall constitute a waiver of notice (1) of such
meeting, except when the stockholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting, and (2) (if it is a
special meeting) of consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice, unless the
stockholder objects to considering the matter at the beginning of the meeting.
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2.6. LIST OF STOCKHOLDERS
After the record date for a meeting of stockholders has been
fixed, at least ten days before such meeting, the officer or other agent of the
Corporation who has charge of the stock ledger of the Corporation shall make a
list of all stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place in the city where the meeting is to be held, which
place is to be specified in the notice of the meeting, or at the place where the
meeting is to be held. Such list shall also, for the duration of the meeting, be
produced and kept open to the examination of any stockholder who is present at
the time and place of the meeting.
2.7. QUORUM AT MEETINGS
Stockholders may take action on a matter at a meeting only if a
quorum exists with respect to that matter. Except as otherwise provided by
statute or by the Certificate of Incorporation, a quorum shall exist if there
are present in person or represented by proxy the holders of a majority of the
shares entitled to vote at the meeting. Where a separate vote by a class or
classes is required, a majority of the outstanding shares of such class or
classes, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to that vote on that matter. Once a share
is represented for any purpose at a meeting (other than solely to object (1) to
holding the meeting or transacting business at the meeting or (2) (if it is a
special meeting) to consideration of a particular matter at the meeting that is
not within the purpose or purposes described in the meeting notice), it is
deemed present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for the
adjourned meeting. The holders of a majority of the voting shares represented at
a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time.
2.8. VOTING AND PROXIES
Unless otherwise provided in the Delaware General Corporation
Law or in the Certificate of Incorporation, and subject to the other provisions
of these Bylaws, each stockholder shall be entitled to one vote on each matter,
in person or by proxy, for each share of the Corporation's capital stock that
has voting power and that is held by such stockholder. No proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a
longer period. A duly executed appointment of proxy shall be irrevocable if the
appointment form states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power.
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2.9. REQUIRED VOTE
When a quorum is present at any meeting of stockholders, all
matters shall be determined, adopted and approved by the affirmative vote (which
need not be by ballot) of the holders of a majority of the shares present in
person or represented by proxy at the meeting and entitled to vote with respect
to the matter, unless the proposed action is one upon which, by express
provision of statutes or of the Certificate of Incorporation, a different vote
is specified and required, in which case such express provision shall govern and
control with respect to that vote on that matter. Where a separate vote by a
class or classes is required, the affirmative vote of the holders of a majority
of the shares of such class or classes present in person or represented by proxy
at the meeting shall be the act of such class. Notwithstanding the foregoing,
directors shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of directors.
2.10. INSPECTORS
Prior to any meeting of stockholders, the Board, the Chairman,
the Chief Executive Officer or the President shall appoint one or more
inspectors to act at such meeting and make a written report thereof and may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at the meeting of
stockholders, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall ascertain the number of shares
outstanding and the voting power of each, determine the shares represented at
the meeting and the validity of proxies and ballots, count all votes and
ballots, determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors and
certify their determination of the number of shares represented at the meeting
and their count of all votes and ballots. The inspectors may appoint or retain
other persons to assist them in the performance of their duties. The date and
time of the opening and closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting. No
ballot, proxy or vote, nor any revocation thereof or change thereto, shall be
accepted by the inspectors after the closing of the polls. In determining the
validity and counting of proxies and ballots, the inspectors shall be limited to
an examination of the proxies, any envelopes submitted therewith, any
information provided by a stockholder who submits a proxy by telegram, cablegram
or other electronic transmission from which it can be determined that the proxy
was authorized by the stockholder, ballots and the regular books and records of
the Corporation, and they may also consider other reliable information for the
limited purposes of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons that represent more votes than
the holder of a proxy is authorized by the record owner to cast or more votes
than the stockholder holds of record. If the inspectors consider other reliable
information for such purpose, they shall, at the time they make their
certification, specify the precise information considered by them, including the
person or persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the basis for
the inspectors' belief that such information is accurate and reliable.
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3. DIRECTORS
3.1. POWERS
The business and affairs of the Corporation shall be managed by
or under the direction of the Board, which may exercise all such powers of the
Corporation and do all such lawful acts and things, subject to any limitation
set forth in the Certificate of Incorporation or as otherwise may be provided in
the Delaware General Corporation Law.
3.2. NUMBER AND ELECTION
The number of directors which shall constitute the whole board
shall not be fewer than three (3) nor more than seven (7). The first board shall
consist of four(4) directors. Thereafter, within the limits above specified, the
number of directors shall be determined by resolution of the Board of Directors.
Once elected or chosen pursuant to the Certificate of Incorporation and these
Bylaws, a director shall hold office until the director's successor is elected
and qualified or until the director dies, resigns or is removed; provided,
however, that if the Board decreases the number of directors constituting the
whole Board and designates a particular directorship to be eliminated due to the
decrease, a director in the eliminated directorship shall cease to hold office
after the next election of directors, unless the director is nominated and
elected to another directorship on the Board.
3.3. VACANCIES
Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled by the
affirmative vote of a majority of the directors then in office, although fewer
than a quorum, or by a sole remaining director. Whenever the holders of any
class or classes of stock or series thereof are entitled to elect one or more
directors by the provisions of the Certificate of Incorporation, vacancies and
newly created directorships of such class or classes or series may be filled by
the affirmative vote of a majority of the directors elected by such class or
classes or series thereof then in office, or by a sole remaining director so
elected. Each director so chosen shall hold office until the next election of
directors of the class to which such director was appointed, and until such
director's successor is elected and qualified, or until the director's earlier
death, resignation or removal. In the event that one or more directors resign
from the Board, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office until the next election of directors, and until such director's successor
is elected and qualified, or until the director's earlier death, resignation or
removal.
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3.4. MEETINGS
3.4.1. REGULAR MEETINGS
Regular meetings of the Board may be held without notice
at such time and at such place as shall from time to time be determined by the
Board.
3.4.2. SPECIAL MEETINGS
Special meetings of the Board may be called by the
Chairman, Chief Executive Officer or President on not less than 48 hours notice
to each director, either personally or by telephone, express delivery service
(so that the scheduled delivery date of the notice is at least one day in
advance of the meeting), telegram or facsimile transmission, and on five days'
notice by mail (effective upon deposit of such notice in the mail). The notice
need not describe the purpose of a special meeting.
3.4.3. PRESENCE AT MEETINGS
Members of the Board may participate in a meeting of the
Board by any communication by means of which all participating directors can
simultaneously hear each other during the meeting. A director participating in a
meeting by this means is deemed to be present in person at the meeting.
3.4.4. ACTION WITHOUT MEETING
Any action required or permitted to be taken at any
meeting of the Board may be taken without a meeting if the action is taken by
all members of the Board. The action must be evidenced by one or more written
consents describing the action taken, signed by each director, and delivered to
the Corporation for inclusion in the minute book.
3.4.5. WAIVER OF NOTICE OF MEETING
A director may waive any notice required by statute, the
Certificate of Incorporation or these Bylaws before or after the date and time
(1) stated in the notice or (2) of the meeting. Except as set forth below, the
waiver must be in writing, signed by the director entitled to the notice, and
delivered to the Corporation for inclusion in the minute book. Notwithstanding
the foregoing, a director's attendance at or participation in a meeting waives
any required notice to the director of the meeting unless the director at the
beginning of the meeting objects to holding the meeting or transacting business
at the meeting and does not thereafter vote for or assent to action taken at the
meeting.
3.5. QUORUM AND VOTE AT MEETINGS
At all meetings of the Board, a quorum of the Board consists of
a majority of the total number of directors constituting the whole Board as
established pursuant to Section 3.2 of these Bylaws. The vote of a majority of
the directors present at any meeting at which there is a
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quorum shall be the act of the Board, except as may be otherwise specifically
provided by statute or by the Certificate of Incorporation or by these Bylaws.
3.6. COMMITTEES OF DIRECTORS
The Board may designate one or more committees, each committee
to consist of one or more directors. The Board may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. If a member of a committee
is absent from any meeting, or disqualified from voting thereat, the remaining
member or members present and not disqualified from voting, whether or not such
member or members constitute a quorum, may, by unanimous vote, appoint another
member of the Board to act at the meeting in the place of such absent or
disqualified member. Any such committee, to the extent provided in the
resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers that may require it; but no such committee shall have the power or
authority in reference to approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or adopting,
amending or repealing any Bylaw of the Corporation; and unless the resolution
designating the committee, these Bylaws or the Certificate of Incorporation
expressly so provides, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock or to adopt a certificate
of ownership and merger pursuant to Section 253 of the Delaware General
Corporation Law. Such committee or committees shall have such name or names as
may be determined from time to time by resolution adopted by the Board. Each
committee shall keep regular minutes of its meetings and report the same to the
Board, when required. Unless otherwise specified in the Board resolution
appointing the Committee, all provisions of the Delaware General Corporation Law
and these Bylaws relating to meetings, action without meetings, notice (and
waiver thereof) and quorum and voting requirements of the Board apply, as well,
to such committees and their members.
3.7. COMPENSATION OF DIRECTORS
The Board shall have the authority to fix the compensation of
directors. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
4. OFFICERS
4.1. POSITIONS
The officers of the Corporation shall be a Chairman, Chief
Executive Officer, President and Secretary, and such other officers as the Board
(or an officer authorized by the Board) from time to time may appoint, including
a Vice Chairman, one or more Vice Presidents (any of whom may be designated
Senior Vice President or Executive Vice President), Assistant
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Secretaries, Treasurer and Assistant Treasurers. Each such officer shall
exercise such powers and perform such duties as shall be set forth below and
such other powers and duties as from time to time may be specified by the Board
or by any officer(s) authorized by the Board to prescribe the duties of such
other officers. Any number of offices may be held by the same person. Each of
the Chairman, Vice Chairman, Chief Executive Officer, President and/or any Vice
President may execute bonds, mortgages, contracts and other instruments and
documents under the seal of the Corporation, if required, except where required
or permitted by law to be otherwise executed and except where the execution
thereof shall be expressly delegated by the Board to some other officer or agent
of the Corporation.
4.2. CHAIRMAN
The Chairman shall (when present and unless otherwise provided
by resolution of the Board or delegated by the Chairman) preside at all meetings
of the Board and stockholders, and shall ensure that all orders and resolutions
of the Board and stockholders are carried into effect.
4.3. VICE CHAIRMAN
In the absence of the Chairman or in the event of the Chairman's
inability or refusal to act, the Vice Chairman shall perform the duties of the
Chairman, and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the Chairman.
4.4. CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall be the chief executive of the
Corporation and shall have full responsibility and authority for management of
the operations of the Corporation and shall have and perform such other duties
as may be prescribed by the stockholders, the Board or the Executive Committee
(if any).
4.5. PRESIDENT
The President shall report directly to the Chief Executive
Officer and shall have the duties, responsibilities and authorities as may be
prescribed by the Chief Executive Officer, the Board or the Executive Committee
(if any). In addition, in the absence of the Chief Executive Officer or in the
event of the Chief Executive Officer's inability or refusal to act, the
president shall perform the duties of the Chief Executive Officer, and when so
acting shall have all the powers of, and be subject to all the restrictions
upon, the Chief Executive Officer.
4.6. VICE PRESIDENT
In the absence of the President or in the event of the
President's inability or refusal to act, the Vice President (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated, or in the absence of any designation, then in the order of their
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election) shall perform the duties of the President, and when so acting shall
have all the powers of, and be subject to all the restrictions upon, the
President. Unless the order is otherwise designated, an Executive Vice President
shall come in order before any Senior Vice President and any Vice President, and
a Senior Vice President shall come in order before any Vice President.
4.7. SECRETARY
The Secretary shall have responsibility for preparation of
minutes of meetings of the Board and of the stockholders and for authenticating
records of the Corporation. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the Board.
The Secretary or an Assistant Secretary may also attest all instruments signed
by any other officer of the Corporation.
4.8. ASSISTANT SECRETARY
The Assistant Secretary, or if there be more than one, the
Assistant Secretaries in the order determined by the Board (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Secretary or in the event of the Secretary's inability or
refusal to act, perform the duties and exercise the powers of the Secretary.
4.9. TREASURER
The Treasurer, if one is appointed, shall have responsibility
for the custody of the corporate funds and securities and shall see to it that
full and accurate accounts of receipts and disbursements are kept in books
belonging to the Corporation. The Treasurer, if one is appointed, shall render
to the Chairman, the Chief Executive Officer, the President and the Board, upon
request, an account of all financial transactions and of the financial condition
of the Corporation.
4.10. ASSISTANT TREASURER
The Assistant Treasurer, or if there shall be more than one, the
Assistant Treasurers in the order determined by the Board (or if there shall
have been no such determination, then in the order of their election), shall, in
the absence of the Treasurer or in the event of the Treasurer's inability or
refusal to act, perform the duties and exercise the powers of the Treasurer.
4.11. TERM OF OFFICE
The officers of the Corporation shall hold office until their
successors are chosen and qualify or until their earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation. Any
officer elected or appointed by the Board may be removed at any time, with or
without cause, by the affirmative vote of a majority of the Board.
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4.12. COMPENSATION
The compensation of officers of the Corporation shall be fixed
by the Board or by any officer(s) authorized by the Board to prescribe the
compensation of such other officers.
4.13. FIDELITY BONDS
The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. CERTIFICATES OF STOCK; UNCERTIFICATED SHARES
The shares of the Corporation shall be represented by
certificates, provided that the Board may provide by resolution that some or all
of any or all classes or series of the Corporation's stock be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until the certificate is surrendered to the Corporation.
Notwithstanding the adoption of such a resolution by the Board, every holder of
stock represented by certificates, and upon request every holder of
uncertificated shares, shall be entitled to have a certificate (representing the
number of shares registered in certificate form) signed in the name of the
Corporation by the Chairman or Vice Chairman, Chief Executive Officer, President
or any Vice President, and by the Treasurer, Secretary or any Assistant
Treasurer or Assistant Secretary of the Corporation. Any or all the signatures
on the certificate may be facsimile. In case any officer, transfer agent or
registrar whose signature or facsimile signature appears on a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
5.2. LOST CERTIFICATES
The Board, Chairman, Chief Executive Officer, President or
Secretary may direct a new certificate of stock to be issued in place of any
certificate theretofore issued by the Corporation and alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming that the certificate of stock has been lost, stolen or destroyed. When
authorizing such issuance of a new certificate, the Board or any such officer
may, as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or such owner's legal
representative, to advertise the same in such manner as the Board or such
officer shall require and/or to give the Corporation a bond or indemnity, in
such sum or on such terms and conditions as the Board or such officer may
direct, as indemnity against any claim that may be made against the Corporation
on account of the certificate alleged to have been lost, stolen or destroyed or
on account of the issuance of such new certificate or uncertificated shares.
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5.3. RECORD DATE
5.3.1. ACTIONS BY STOCKHOLDERS
In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders,
the Board may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board, and
which record date shall not be more than 60 days nor less than ten days before
the date of such meeting. If no record date is fixed by the Board, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting, unless the Board
fixes a new record date for the adjourned meeting.
5.3.2. PAYMENTS
In order that the Corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board adopts the resolution relating thereto.
5.4. STOCKHOLDERS OF RECORD
The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, to receive notifications, to vote as such owner and to exercise all
the rights and powers of an owner. The Corporation shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise may be provided by the Delaware General
Corporation Law.
6. INDEMNIFICATION; INSURANCE
6.1. AUTHORIZATION OF INDEMNIFICATION
Each person who was or is a party or is threatened to be made a
party to or is involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
by or in the right of the Corporation or otherwise (a "proceeding"), by reason
of the fact that he or she is or was a director or officer of
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the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee, partner (limited or general) or agent of another
corporation or of a partnership, joint venture, limited liability company, trust
or other enterprise, including service with respect to an employee benefit plan,
shall be (and shall be deemed to have a contractual right to be) indemnified and
held harmless by the Corporation (and any successor to the Corporation by merger
or otherwise) to the fullest extent authorized by, and subject to the conditions
and (except as provided herein) procedures set forth in the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but any such
amendment shall not be deemed to limit or prohibit the rights of indemnification
hereunder for past acts or omissions of any such person insofar as such
amendment limits or prohibits the indemnification rights that said law permitted
the Corporation to provide prior to such amendment), against all expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA taxes
or penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred or suffered by such person in connection therewith if such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Corporation, and, with respect to
any criminal proceeding, had no reasonable cause to believe such person's
conduct was unlawful; provided, however, that the Corporation shall indemnify
any such person seeking indemnification in connection with a proceeding (or part
thereof) initiated by such person (except for a suit or action pursuant to
Section 6.2 hereof) only if such proceeding (or part thereof) was authorized by
the Board. Persons who are not directors or officers of the Corporation and are
not so serving at the request of the Corporation may be similarly indemnified in
respect of such service to the extent authorized at any time by the Board. The
indemnification conferred in this Section 6.1 also shall include the right to be
paid by the Corporation (and any successor) the expenses (including attorneys'
fees) incurred in the defense of or other involvement in any such proceeding in
advance of its final disposition; provided, however, that, if and to the extent
the Delaware General Corporation Law requires, the payment of such expenses
(including attorneys' fees) incurred by a director or officer in advance of the
final disposition of a proceeding shall be made only upon delivery to the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so paid in advance if it shall ultimately be determined that
such director or officer is not entitled to be indemnified under this Section
6.1 or otherwise; and provided further, that such expenses incurred by other
employees and agents may be so paid in advance upon such terms and conditions,
if any, as the Board deems appropriate.
6.2. RIGHT OF CLAIMANT TO BRING ACTION AGAINST THE CORPORATION
If a claim under Section 6.1 is not paid in full by the
Corporation within 60 days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring an action against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such action. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct that make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed or is otherwise not entitled to indemnification under Section
6.1, but the
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burden of proving such defense shall be on the Corporation. The failure of the
Corporation to have made a determination (in the manner provided under the
Delaware General Corporation Law) prior to or after the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law shall not be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
6.3. NON-EXCLUSIVITY
The rights to indemnification and advance payment of expenses
provided by Section 6.1 hereof shall not be deemed exclusive of any other rights
to which those seeking indemnification and advance payment of expenses may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office.
6.4. SURVIVAL OF INDEMNIFICATION
The rights to indemnification and advance payment of expenses
provided by Section 6.1 hereof shall continue as to a person who has ceased to
be a director, officer, employee, partner or agent and shall inure to the
benefit of the personal representatives, heirs, executors and administrators of
such person.
6.5. INSURANCE
The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee, partner (limited or general) or agent of
another corporation or of a partnership, joint venture, limited liability
company, trust or other enterprise, against any liability asserted against such
person or incurred by such person in any such capacity, or arising out of such
person's status as such, and related expenses, whether or not the Corporation
would have the power to indemnify such person against such liability under the
provisions of the Delaware General Corporation Law.
7. GENERAL PROVISIONS
7.1. INSPECTION OF BOOKS AND RECORDS
Any stockholder, in person or by attorney or other agent, shall,
upon written demand under oath stating the purpose thereof, have the right
during the usual hours for business to inspect for any proper purpose the
Corporation's stock ledger, a list of its stockholders, and its other books and
records, and to make copies or extracts therefrom. A proper purpose shall mean a
purpose reasonably related to such person's interest as a stockholder. In every
instance where an attorney or other agent is the person who seeks the right to
inspection, the demand under oath shall be accompanied by a power of attorney or
such other writing that authorizes the attorney or
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other agent to so act on behalf of the stockholder. The demand under oath shall
be directed to the Corporation at its registered office or at its principal
place of business.
7.2. DIVIDENDS
The Board may declare dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation and
the laws of the State of Delaware.
7.3. RESERVES
The directors of the Corporation may set apart, out of the funds
of the Corporation available for dividends, a reserve or reserves for any proper
purpose and may abolish any such reserve.
7.4. EXECUTION OF INSTRUMENTS
All checks, drafts or other orders for the payment of money and
promissory notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board may from time to time designate.
7.5. FISCAL YEAR
The fiscal year of the Corporation shall be fixed by resolution
of the Board.
7.6. SEAL
The corporate seal shall be in such form as the Board shall
approve. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or otherwise reproduced.
* * * *
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
1. Offices.......................................................................1
1.1. Registered Office......................................................1
1.2. Other Offices..........................................................1
2. Meetings of Stockholders......................................................1
2.1. Place of Meetings......................................................1
2.2. Annual Meetings........................................................1
2.3. Special Meetings.......................................................3
2.4. Notice of Meetings.....................................................3
2.5. Waivers of Notice......................................................3
2.6. List of Stockholders...................................................4
2.7. Quorum at Meetings.....................................................4
2.8. Voting and Proxies.....................................................4
2.9. Required Vote..........................................................5
2.10. Inspectors.............................................................5
3. Directors.....................................................................6
3.1. Powers.................................................................6
3.2. Number and Election....................................................6
3.3. Meetings...............................................................6
3.3.1. Regular Meetings................................................7
3.3.2. Special Meetings................................................7
3.3.3. Presence at Meetings............................................7
3.3.4. Action Without Meeting..........................................7
3.3.5. Waiver of Notice of Meeting.....................................7
3.4. Quorum and Vote at Meetings............................................8
3.5. Committees of Directors................................................8
3.6. Compensation of Directors..............................................8
4. Officers......................................................................9
4.1. Positions..............................................................9
4.2. Chairman...............................................................9
4.3. Vice Chairman..........................................................9
4.4. Chief Executive Officer................................................9
4.5. President..............................................................9
4.6. Vice President.........................................................10
4.7. Secretary..............................................................10
4.8. Assistant Secretary....................................................10
4.9. Treasurer..............................................................10
4.10. Assistant Treasurer....................................................10
4.11. Term of Office.........................................................11
</TABLE>
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<TABLE>
<S> <C>
4.12. Compensation...........................................................11
4.13. Fidelity Bonds.........................................................11
5. Capital Stock.................................................................11
5.1. Certificates of Stock; Uncertificated Shares...........................11
5.2. Lost Certificates......................................................11
5.3. Record Date............................................................12
5.3.1. Actions by Stockholders.........................................12
5.3.2. Payments........................................................12
5.4. Stockholders of Record.................................................12
6. INDEMNIFICATION; INSURANCE....................................................13
6.1. Authorization of Indemnification.......................................13
6.2. Right of Claimant to Bring Action Against the Corporation..............14
6.3. Non-exclusivity........................................................14
6.4. Survival of Indemnification............................................14
6.5. Insurance..............................................................14
7. General Provisions............................................................15
7.1. Inspection of Books and Records........................................15
7.2. Dividends..............................................................15
7.3. Reserves...............................................................15
7.4. Execution of Instruments...............................................15
7.5. Fiscal Year............................................................15
7.6. Seal...................................................................15
</TABLE>
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E-CENTIVES, INC.
AMENDED AND RESTATED
BYLAWS
ADOPTED
AS OF
AUGUST __, 2000
