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EXHIBIT 3
AMENDED AND RESTATED BY-LAWS
OF
CAMINUS CORPORATION
(November 2, 2000)
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BY-LAWS
TABLE OF CONTENTS
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ARTICLE 1 - 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...........................................................2
1.6 Quorum................................................................2
1.7 Adjournments..........................................................2
1.8 Voting and Proxies....................................................3
1.9 Action at Meeting.....................................................3
1.10 Nomination of Directors...............................................3
1.11 Notice of Business at Annual Meetings.................................5
1.12 Action without Meeting................................................6
1.13 Organization..........................................................6
1.14 Rules, Regulations and Procedures.....................................6
ARTICLE 2 - Directors.............................................................7
2.1 General Powers........................................................7
2.2 Number; Election and Qualification....................................7
2.3 Classes of Directors..................................................7
2.4 Terms of Office.......................................................7
2.5 Allocation of Directors Among Classes in the Event of Increases or
Decreases in the Number of Directors..................................8
2.6 Vacancies.............................................................8
2.7 Resignation...........................................................8
2.8 Regular Meetings......................................................8
2.9 Special Meetings......................................................9
2.10 Notice of Special Meetings............................................9
2.11 Meetings by Telephone Conference Calls................................9
2.12 Quorum................................................................9
2.13 Action at Meeting.....................................................9
2.14 Action by Consent.....................................................9
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2.15 Committees...........................................................10
2.16 Compensation of Directors............................................10
ARTICLE 3 - Officers.............................................................10
3.1 Enumeration..........................................................10
3.2 Election.............................................................11
3.3 Qualification........................................................11
3.4 Tenure...............................................................11
3.5 Resignation and Removal..............................................11
3.6 Vacancies............................................................11
3.7 Chairman of the Board and Vice Chairman of the Board.................11
3.8 President............................................................12
3.9 Vice Presidents......................................................12
3.10 Secretary and Assistant Secretaries..................................12
3.11 Treasurer and Assistant Treasurers...................................13
3.12 Salaries.............................................................13
ARTICLE 4 - Capital Stock........................................................13
4.1 Issuance of Stock....................................................13
4.2 Certificates of Stock................................................13
4.3 Transfers............................................................14
4.4 Lost, Stolen or Destroyed Certificates...............................14
4.5 Record Date..........................................................14
ARTICLE 5 - General Provisions...................................................15
5.1 Fiscal Year..........................................................15
5.2 Corporate Seal.......................................................15
5.3 Waiver of Notice.....................................................15
5.4 Voting of Securities.................................................15
5.5 Evidence of Authority................................................15
5.6 Certificate of Incorporation.........................................16
5.7 Transactions with Interested Parties.................................16
5.8 Severability.........................................................16
5.9 Pronouns.............................................................17
ARTICLE 6 - Amendments...........................................................17
6.1 By the Board of Directors............................................17
6.2 By the Stockholders..................................................17
6.3 Certain Provisions...................................................17
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AMENDED AND RESTATED BY-LAWS
OF
CAMINUS CORPORATION
ARTICLE 1 - Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held
at such place 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 principal office of the corporation. The Board of Directors
may, in its sole discretion, determine that a meeting shall not be held at any
place, but may instead be held solely by means of remote communication in a
manner consistent with the Delaware General Corporation Law.
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 and at a time
designated 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). 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 may be
called at any time only by the Chairman of the Board of Directors, the
President or the Board of Directors. 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 ten nor more than 60 days before the date of the
meeting to each stockholder entitled to vote at such meeting. Without limiting
the manner by which notice otherwise may be given to stockholders, any notice
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shall be effective if given by a form of electronic transmission consented to
(in a manner consistent with the Delaware General Corporation Law) by the
stockholder to whom the notice is given. The notices of all meetings shall
state the place, if any, date and time of the meeting and the means of remote
communications, if any, by which stockholders and proxyholders may be deemed
to be present in person and vote at such meeting. The notice of a special
meeting shall state, in addition, the purpose or purposes for which the
meeting is called. If notice is given by mail, such notice shall be deemed
given when deposited in the United States mail, postage prepaid, directed to
the stockholder at the stockholder's address as it appears on the records of
the corporation. If notice is given by electronic transmission, such notice
shall be deemed given at the time specified in Section 232 of the Delaware
General Corporation Law.
1.5 Voting List. The Secretary shall prepare, at least ten 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, for a period of at least
ten days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (ii) during ordinary business
hours, at the principal place of business of the corporation. If the meeting
is to be held at a place, then the list shall be produced and kept at the time
and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present. If the meeting is to be held solely by
means of remote communication, then the list shall also be open to the
examination of any stockholder during the whole time of the meeting on a
reasonably accessible electronic network, and the information required to
access such list shall be provided with the notice of the meeting.
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, present by means of remote
communication in a manner, if any, authorized by the Board of Directors in its
sole discretion 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
form time to time to any other time and to any other place at which a meeting
of stockholders may be held under
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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, if any, of the
adjourned meeting, and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote
at such 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, or to express consent or
dissent to corporate action without a meeting, may vote or express such
consent or dissent in person or may authorize another person or persons to
vote or act for such stockholder by a proxy executed or transmitted in a
manner permitted by the General Corporation Law of Delaware by the stockholder
or such stockholder's authorized agent and delivered (including by electronic
transmission) to the Secretary of the corporation. No such proxy shall be
voted or acted 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 other than the election of directors to be voted upon by the
stockholders at such meeting shall be decided by the vote of the holders of
shares of stock having a majority of the votes cast by the holders of all of
the shares of 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 express provision of law, the Certificate of
Incorporation or these By-laws. When a quorum is present at any meeting, any
election by stockholders of directors shall be determined by a plurality of
the votes cast on the election.
1.10 Nomination of Directors. Only persons who are nominated in
accordance with the following procedures 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 by the Board of Directors
or by any stockholder of the corporation entitled to vote for the election of
directors
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at such meeting who complies with the notice procedures set forth in this
Section 1.10. Such nominations, other than those made by or on behalf of the
Board of Directors, shall be made by timely notice in writing to the Secretary
of the corporation. To be timely, a stockholder's notice must be delivered to,
or mailed and received by, the Secretary at the principal executive offices of
the corporation not less than 70 days nor more than 90 days prior to the first
anniversary of the preceding year's annual meeting; provided, however, that
(i) in the event that the date of the annual meeting is advanced by more than
20 days, or delayed by more than 70 days, from such anniversary date, notice
by the stockholder to be timely must be so delivered or received not earlier
than the ninetieth day prior to such annual meeting and not later than the
close of business on the later of the seventieth day prior to such annual
meeting or 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, and (ii) with respect to the annual
meeting of stockholders of the corporation to be held in the year 2000, to be
timely, 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. A stockholder's notice to the Secretary shall
set forth (a) as to each proposed nominee (i) the name, age, business address
and, if known, residence address of each such nominee, (ii) the principal
occupation or employment of each such nominee, (iii) the number of shares of
stock of the corporation which are beneficially owned by each such nominee,
and (iv) any other information concerning the nominee that must be disclosed
as to nominees in proxy solicitations pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including such person's written
consent to be named as a nominee and to serve as a director if elected); and
(b) as to the stockholder giving the notice (i) the name and address, as they
appear on the corporation's books, of such stockholder and (ii) the class and
number of shares of the corporation which are beneficially owned by such
stockholder. 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 by the
corporation to determine the eligibility of such proposed nominee to serve as
a director of the corporation.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he
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should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
1.11 Notice of Business at Annual Meetings. At an annual meeting of
the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors,
(b) otherwise brought before the meeting by or at the direction of the Board
of Directors, or (c) otherwise properly brought before an annual meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, if such business relates to the election of directors of the
corporation, the procedures in Section 1.10 must be complied with. If such
business relates to any other matter, the stockholder must have given timely
notice thereof in writing to the Secretary. To be timely, a stockholder's
notice must be delivered to, or mailed and received by, the Secretary at the
principal executive offices of the corporation not less than 70 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that (i) in the event that the date of the annual
meeting is advanced by more than 20 days, or delayed by more than 70 days,
from such anniversary date, notice by the stockholder to be timely must be so
delivered or received not earlier than the ninetieth day prior to such annual
meeting and not later than the close of business on the later of the
seventieth day prior to such annual meeting or 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, and (ii) with respect to the annual meeting of stockholders of the
corporation to be held in the year 2000, to be timely, 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. A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before the annual meeting (a) 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, (b) the
name and address, as they appear on the corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding
anything in these By-laws to the contrary, no business shall be conducted at
any annual meeting except in accordance with the procedures set forth in this
Section 1.11 and except that any stockholder proposal which complies with
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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.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting 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, the chairman shall so declare to the meeting that any
such business not properly brought before the meeting shall not be transacted.
1.12 Action without Meeting. From and after the date that the
corporation first has a class of securities registered under the Securities
Exchange Act of 1934, as amended, stockholders of the corporation may not take
any action by written consent in lieu of a meeting.
1.13 Organization. The Chairman of the Board, or in his absence the
Vice Chairman of the Board designated by the Chairman of the Board, or the
President, in the order named, shall call meetings of the stockholders to
order, and shall act as chairman of such meeting; provided, however, that the
Board of Directors may appoint any stockholder to act as chairman of any
meeting in the absence of the Chairman of the Board. The Secretary of the
corporation shall act as secretary at all meetings of the stockholders; but in
the absence of the Secretary at any meeting of the stockholders, the presiding
officer may appoint any person to act as secretary of the meeting.
1.14 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 including, without limitation, such guidelines and procedures
as it may deem appropriate regarding the participation by means of remote
communication of stockholders and proxyholders not physically present at a
meeting. 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
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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.
ARTICLE 2 - 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 by
resolution of the Board of Directors, but in no event shall be less than three.
The number of directors may be decreased at any time and from time to time by a
majority of the directors then in office, but only to eliminate vacancies
existing by reason of the death, resignation, removal or expiration of the term
of one or more directors. 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 designated 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 from time to time by
resolution adopted by 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 ending on the date of the annual meeting of
stockholders in 2000; each initial director in Class II shall serve for
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a term ending on the date of the annual meeting of stockholders in 2001; and
each initial director in Class III shall serve for a term ending on the date
of the annual meeting of stockholders in 2002; and provided further, that the
term of each director shall be subject to the election and qualification of
his successor and to his earlier death, resignation or removal.
2.5 Allocation of Directors Among Classes in the Event of
Increases or Decreases in the 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 or she is a member 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 so as to ensure
that no one class has more than one director more than any other class. To the
extent possible, consistent with the foregoing rule, 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 adopted by the Board of
Directors.
2.6 Vacancies. Any vacancy in the Board of Directors, however
occurring, including a vacancy resulting from an enlargement of the size 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 for the unexpired term of
his predecessor in office, and a director chosen to fill a position resulting
from an increase in the number of directors shall 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.
2.7 Resignation. Any director may resign by delivering his written
resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some
other event.
2.8 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.
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2.9 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, President, two or more
directors, or by one director in the event that there is only a single
director in office.
2.10 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 message, or delivering written notice by
hand, to his last known business or home address at least 24 hours in advance
of the meeting, (iii) by depositing written notice with a
nationally-recognized courier for overnight delivery to his last known
business or home address at least 48 hours in advance of the meeting or (iv)
by mailing written notice 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.
2.11 Meetings by Telephone Conference Calls. Directors or any
members of any committee designated by the directors may participate in a
meeting of the Board of Directors or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation by such
means shall constitute presence in person at such meeting.
2.12 Quorum. A majority of the total number of the whole Board of
Directors shall constitute a quorum at all meetings of the Board of Directors.
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 such
director so disqualified; provided, however, that in no case shall less than
one-third (1/3) of the number so fixed constitute a quorum. In the absence of
a quorum at any such meeting, 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.
2.13 Action at Meeting. At any meeting of the Board of Directors at
which a quorum is present, the vote of a majority of those present shall be
sufficient to take any action, unless a different vote is specified by law,
the Certificate of Incorporation or these By-laws.
2.14 Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee of the
Board of Directors may be taken without a
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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.
2.15 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 the General Corporation Law of the
State of Delaware, shall have and may 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.
2.16 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 3 - Officers
3.1 Enumeration. 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.
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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 vote choosing or appointing him, or until his earlier
death, resignation or removal.
3.5 Resignation and Removal. Any officer may resign by delivering
his or her written resignation to the corporation at its principal office or
to the President or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the
happening of some other 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 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 and Vice Chairman of the Board. The
Board of Directors may appoint 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. Unless
otherwise provided by the Board of Directors, he shall preside at all meetings
of the stockholders and at Ball meetings of the Board of Directors. If the
Board of
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Directors appoints a Vice Chairman of the Board, he shall, in the absence or
disability of the Chairman of the Board, perform the duties and exercise the
powers of the Chairman of the Board and shall perform such other duties and
possess such other powers as may from time to time be vested in him by the
Board of Directors.
3.8 President. The President shall, subject to the direction of
the Board of Directors, have general charge and supervision of the business of
the corporation. Unless the Board of Directors has designated the Chairman of
the Board or another officer as Chief Executive Officer, the President shall
be the Chief Executive Officer of the corporation. The President shall perform
such other duties and shall have such other powers as the Board of Directors
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 President may from
time to time prescribe. In the event of the absence, inability or refusal to
act of the President, 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 President and when so performing shall have all the
powers of and be subject to all the restrictions upon the President. 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 President 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.
Any Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the President 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.
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In the absence of the Secretary or any Assistant Secretary at any
meeting of stockholders or directors, the person presiding at 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 or her by the Board of Directors or the President. 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 President 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 4 - 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 or her in the corporation. Each such certificate
shall be signed by, or in the name of the corporation by, the Chairman or Vice
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Chairman, if any, of the Board of Directors, or the President or a Vice
President, and the Treasurer or an Assistant 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, the
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.
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 ten
days before the date of such meeting, nor more than 60 days prior to any other
action to which such record date relates.
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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 the
day on which the meeting is held. 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 5 - 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 in 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 Waiver of Notice. Whenever notice is required to be given by
law, by the Certificate of Incorporation or by these By-laws, a written
waiver, signed by the person entitled to notice or a waiver by electronic
transmission by the person entitled to notice, whether before, at or after the
time stated in such waiver, or the attendance of such person at such meeting,
shall be deemed equivalent to such notice.
5.4 Voting of Securities. Except as the directors may otherwise
designate, the President or 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.
5.5 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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5.6 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.
5.7 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 which authorizes the contract or
transaction or solely because his or their votes are counted for such purpose,
if:
(1) 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;
(2) 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
(3) 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.
5.8 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.
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5.9 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 6 - Amendments
6.1 By the Board of Directors. These By-laws may be altered,
amended or repealed or new By-laws may be adopted by the affirmative vote of a
majority of the directors present at any regular or special meeting of the
Board of Directors at which a quorum is present.
6.2 By the Stockholders. Except as otherwise provided in Section
6.3, these By-laws may be altered, amended or repealed or new By-laws may be
adopted by the affirmative vote of the holders of a majority of the shares of
the capital stock of the corporation issued and outstanding and entitled to
vote at any regular or special meeting of stockholders, provided notice of
such alteration, amendment, repeal or adoption of new By-laws shall have been
stated in the notice of such regular or special meeting.
6.3 Certain Provisions. Notwithstanding any other provision of
law, the Certificate of Incorporation or these By-laws, and notwithstanding
the fact that a lesser percentage may be specified by law, the affirmative
vote of the holders of at least seventy-five percent (75%) of the shares of
the capital stock of the corporation issued and outstanding and entitled to
vote shall be required to amend or repeal, or to adopt any provision
inconsistent with Section 1.3, Section 1.10, Section 1.11, Section 1.12,
Section 1.13, Article 2 or Article 6 of these By-laws.
Approved and adopted by the
Board of Directors on November 2, 2000
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