<PAGE>
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
INSESSION TECHNOLOGIES, INC.
A Delaware Corporation
Effective as of May 16, 2000
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
ARTICLE 1 OFFICES............................................................. 1
1.1 Registered Office and Agent........................................... 1
1.2 Other Offices......................................................... 1
ARTICLE 2 MEETINGS OF STOCKHOLDERS............................................ 1
2.1 Annual Meeting........................................................ 1
2.2 Special Meeting....................................................... 1
2.3 Place of Meetings..................................................... 2
2.4 Notice................................................................ 2
2.5 Voting List........................................................... 2
2.6 Quorum................................................................ 3
2.7 Required Vote; Withdrawal of Quorum................................... 3
2.8 Method of Voting; Proxies............................................. 3
2.9 Record Date........................................................... 4
2.10 Business at Annual Meetings; Advance Notice of Stockholder Proposals.. 5
2.11 Conduct of Meeting.................................................... 6
2.12 Inspectors............................................................ 7
ARTICLE 3 DIRECTORS........................................................... 7
3.1 Management............................................................ 7
3.2 Number; Qualification; Election; Term................................. 7
3.3 Change in Number...................................................... 7
3.4 Removal............................................................... 8
3.5 Vacancies............................................................. 8
3.6 Meetings of Directors................................................. 8
3.7 Election of Officers.................................................. 8
3.8 Regular Meetings...................................................... 9
3.9 Special Meetings...................................................... 9
3.10 Notice................................................................ 9
3.11 Quorum; Majority Vote................................................. 9
3.12 Procedure............................................................. 9
3.13 Presumption of Assent................................................. 9
3.14 Compensation.......................................................... 10
3.15 Telephone Meetings.................................................... 10
3.16 Action Without a Meeting.............................................. 10
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<C> <S> <C>
ARTICLE 4 COMMITTEES.......................................................... 10
4.1 Designation........................................................... 10
4.2 Number; Qualification; Term........................................... 10
4.3 Authority............................................................. 10
4.4 Committee Changes..................................................... 11
4.5 Alternate Members of Committees....................................... 11
4.6 Regular Meetings...................................................... 11
4.7 Special Meetings...................................................... 11
4.8 Quorum; Majority Vote................................................. 11
4.9 Minutes............................................................... 11
4.10 Compensation.......................................................... 11
4.11 Responsibility........................................................ 11
ARTICLE 5 NOTICE.............................................................. 12
5.1 Method................................................................ 12
5.2 Waiver................................................................ 12
ARTICLE 6 OFFICERS............................................................ 12
6.1 Number; Titles; Term of Office........................................ 12
6.2 Removal............................................................... 12
6.3 Vacancies............................................................. 13
6.4 Authority............................................................. 13
6.5 Compensation.......................................................... 13
6.6 Chairman of the Board................................................. 13
6.7 Chief Executive Officer............................................... 13
6.8 President............................................................. 13
6.9 Vice Presidents....................................................... 14
6.10 Treasurer............................................................. 14
6.11 Assistant Treasurers.................................................. 14
6.12 Secretary............................................................. 14
6.13 Assistant Secretaries................................................. 14
ARTICLE 7 CERTIFICATES AND STOCKHOLDERS....................................... 15
7.1 Certificates for Shares............................................... 15
7.2 Replacement of Lost or Destroyed Certificates......................... 15
7.3 Transfer of Shares.................................................... 15
</TABLE>
ii
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<TABLE>
<CAPTION>
<C> <S> <C>
7.4 Registered Stockholders............................................... 15
7.5 Regulations........................................................... 16
7.6 Legends............................................................... 16
ARTICLE 8 INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEE AND OTHER AGENTS... 16
8.1 Indemnification of Directors and Officers............................. 16
8.2 Indemnification of Others............................................. 16
8.3 Insurance............................................................. 17
8.4 Expenses.............................................................. 17
8.5 Non-Exclusivity of Rights............................................. 17
8.6 Survival of Rights.................................................... 17
8.7 Contractual Nature; Amendments........................................ 18
ARTICLE 9 MISCELLANEOUS PROVISIONS............................................ 18
9.1 Dividends............................................................. 18
9.2 Reserves.............................................................. 18
9.3 Books and Records..................................................... 18
9.4 Fiscal Year........................................................... 18
9.5 Seal.................................................................. 18
9.6 Resignations.......................................................... 18
9.7 Securities of Other Corporations...................................... 18
9.8 Invalid Provisions.................................................... 19
9.9 Mortgages, etc........................................................ 19
9.10 Headings.............................................................. 19
9.11 References............................................................ 19
9.12 Amendments............................................................ 19
</TABLE>
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<PAGE>
AMENDED AND RESTATED
BY-LAWS
OF
INSESSION TECHNOLOGIES, INC.
A Delaware Corporation
PREAMBLE
These by-laws are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation of Insession Technologies, Inc., a Delaware
corporation (the "Corporation"). In the event of a direct conflict between the
provisions of these by-laws and the mandatory provisions of the Delaware General
Corporation Law or the provisions of the certificate of incorporation of the
Corporation, such provisions of the Delaware General Corporation Law or the
certificate of incorporation of the Corporation, as the case may be, will be
controlling.
ARTICLE 1
OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at such other
places, both within and without the State of Delaware, as the board of directors
may from time to time determine or as the business of the Corporation may
require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the Corporation
shall be held each calendar year on such date and at such time as shall be
designated from time to time by the board of directors and stated in the notice
of the meeting or in a duly executed waiver of notice of such meeting. At such
meeting, the stockholders shall elect directors and transact such other business
as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of stockholders may be called at
any time by the Chairman of the Board or the board of directors. In addition,
prior to the Trigger Date (as defined in the certificate of incorporation), the
Corporation will call a special meeting of stockholders promptly upon request by
Transaction Systems Architects, a Delaware corporation
<PAGE>
("TSA"). A special meeting shall be held on such date and at such time as shall
be designated by the person(s) calling the meeting and stated in the notice of
the meeting or in a duly executed waiver of notice of such meeting. Only such
business shall be transacted at a special meeting as may be stated or indicated
in the notice of such meeting or in a duly executed waiver of notice of such
meeting.
2.3 Place of Meetings. An annual meeting of stockholders may be held at
any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice.
(a) Written or printed notice stating the place, day and time of each
meeting of the stockholders and, in case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than 10
nor more than 60 days before the date of the meeting, either personally or by
mail, by or at the direction of the Chief Executive Officer, the Chief Executive
Officer, the President, the Secretary or the officer or person(s) calling the
meeting, to each stockholder of record entitled to vote at such meeting. If such
notice is to be sent by mail, it shall be directed to such stockholder at his
address as it appears on the records of the Corporation, unless he shall have
filed with the Secretary a written request that notices to him be mailed to some
other address, in which case it shall be directed to him at such other address.
Notice of any meeting of stockholders shall not be required to be given to any
stockholder who shall attend such meeting in person or by proxy and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
(b) Notice shall not be required to be given to any stockholder to
whom (i) notices of two consecutive annual meetings, and all notices of meetings
or of the taking of action by written consent without a meeting during the
period between such two annual meetings, or (ii) all, and at least two, payments
(if sent by first class mail) of dividends or interest on securities during a
twelve-month period have been mailed addressed to such stockholder at his
address as shown on the records of the Corporation and have been returned
undeliverable. Any action or meeting which shall be taken or held without notice
to such stockholder shall have the same force and effect as if such notice had
been duly given. If any such stockholder shall deliver to the Corporation a
written notice setting forth his then current address, the requirement that
notice be given to such stockholder shall be reinstated.
2.5 Voting List. At least ten days before each meeting of stockholders,
the Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder. For a period of ten days
prior to such meeting, such
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list shall be kept on file at a place within the city where the meeting is to be
held, which place shall be specified in the notice of meeting or a duly executed
waiver of notice of such meeting or, if not so specified, at the place where the
meeting is to be held and shall be open to examination by any stockholder during
ordinary business hours. Such list shall be produced at such meeting and kept at
the meeting at all times during such meeting and may be inspected by any
stockholder who is present.
2.6 Quorum. The holders of a majority of the outstanding shares entitled
to vote on a matter, present in person or by proxy, shall constitute a quorum at
any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation or these by-laws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time, without notice other than
announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than 30 days or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the adjourned meeting.
2.7 Required Vote; Withdrawal of Quorum. When a quorum is present at any
meeting, the vote of the holders of at least a majority of the outstanding
shares entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of statute, the certificate of incorporation of the
Corporation or these by-laws, a different vote is required, in which case such
express provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or by law, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact, or by any
proxy method permitted by the Delaware General Corporation Law. Each such proxy
shall be filed with the Secretary of the Corporation before or at the time of
the meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
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2.9 Record Date.
(a) For the purpose of determining stockholders entitled to notice of
or to vote at any meeting of stockholders, or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the board of directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the board of directors, for any such determination of stockholders, such date in
any case to be not more than 60 days and not less than 10 days prior to such
meeting nor more than 60 days prior to any other action. If no record date is
fixed:
(i) the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held;
(ii) 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 thereto; and
(iii) a determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the board of
directors may fix a new record date for the adjourned meeting.
(b) Prior to the Trigger Date, in order that the Corporation may
determine the stockholders entitled to consent to corporate action in writing
without a meeting, the board of directors 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 of directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted
by the board of directors. If no record date has been fixed by the board of
directors, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting prior to the Trigger Date, when no
prior action by the board of directors is required by law or these by-laws,
shall be the first date on which a signed written consent setting forth the
action taken or proposed to be taken is delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of
business or an officer or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office in the State of Delaware, principal place of
business or such officer or agent shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the board of
directors and prior action by the board of directors is required by law or these
by-laws, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting prior to the Trigger Date shall be
at the close of business on the day on which the board of directors adopts the
resolution taking such prior action.
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2.10 Business at Annual Meetings; Advance Notice of Stockholder Proposals.
(a) No business may be transacted at an annual meeting of stockholders, other
than business that is either (i) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the board of directors (or
any duly authorized committee thereof), (ii) otherwise properly brought before
the annual meeting by or at the direction of the board of directors (or any duly
authorized committee thereof) or (iii) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (A) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 2.10
and on the record date for the determination of stockholders entitled to vote at
such annual meeting and (B) who complies with the notice procedures set forth in
this Section 2.10.
(b) In order to properly submit any business to an annual meeting of
stockholders, a stockholder must give timely notice in writing to the Secretary
of the Corporation. To be considered timely, a stockholder's notice must be
delivered either in person or by United States certified mail, postage prepaid,
and received at the principal executive offices of the Corporation (i) not less
than 120 calendar days before the date of the Corporation's proxy statement
released to stockholders in connection with the previous year's annual meeting
or such other time period as may be required or permitted by applicable law or
(ii) if no annual meeting was held in the previous year or the date of the
applicable annual meeting has been changed by more than 30 days from the date of
the previous year's annual meeting, not less than a reasonable time prior to the
date the Corporation begins to print and mail its proxy materials, as determined
by the board of directors. For purposes of determining whether a stockholder's
notice shall have been delivered in a timely manner for the annual meeting of
stockholders in 2001, the first anniversary of the previous year's meeting shall
be deemed to be February 22, 2000.
(c) Nomination of persons for election to the board of directors may be
made by (i) the board of directors or any committee designated by the board of
directors or (ii) by any stockholder entitled to vote for the election of
directors at the applicable meeting of stockholders. However, nominations other
than those made by the board of directors or its designated committee must
comply with the procedures set forth in this Section 2.10, and no person shall
be eligible for election as a director unless nominated in accordance with the
terms of this Section 2.10. Any person nominated for election as director by the
board of directors or any committee designated by the board of directors shall,
upon the request of the board of directors or such committee, furnish to the
Secretary of the Corporation all such information pertaining to such person that
is required to be set forth in a stockholder's notice of nomination.
(d) A stockholder may nominate a person or persons for election to the
board of directors by giving written notice to the Secretary of the Corporation
in accordance with the procedures set forth in subsection (b) above.
(e) The Secretary of the Corporation shall deliver any stockholder
proposals and nominations received in a timely manner for review by the board of
directors or a committee designated by the board of directors.
(f) A stockholder's notice to submit business to an annual meeting of
stockholders shall set forth (i) the name and address of the stockholder, (ii)
the class and number of shares of stock beneficially owned by such stockholder,
(iii) the name in which such shares are registered
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on the stock transfer books of the Corporation, (iv) a representation that the
stockholder intends to appear at the meeting in person or by proxy to submit the
business specified in such notice, (v) any material interest of the stockholder
in the business to be submitted and (vi) a brief description of the business
desired to be submitted to the annual meeting, including the complete text of
any resolutions to be presented at the annual meeting, and the reasons for
conducting such business at the annual meeting. In addition, the stockholder
making such proposal shall promptly provide any other information required by
law or otherwise reasonably requested by the Corporation.
(g) In addition to the information required above to be given by a
stockholder who intends to submit business to a meeting of stockholders, if the
business to be submitted is the nomination of a person or persons for election
to the board of directors then such stockholder's notice must also set forth, as
to each person whom the stockholder proposes to nominate for election as a
director, (i) the name, age, business address and, if known, residence address
of such person, (ii) the principal occupation or employment of such person,
(iii) the class and number of shares of stock of the Corporation which are
beneficially owned by such person, (iv) any other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors or is otherwise required by the rules and regulations of the
Securities and Exchange Commission promulgated under the Securities Exchange Act
of 1934, as amended, (v) the written consent of such person to be named in the
proxy statement as a nominee and to serve as a director if elected and (vi) a
description of all arrangements or understandings between such stockholder and
each nominee and any other person or persons (naming such person or persons)
pursuant to which the nomination or nominations are to be made by such
stockholder.
(h) (i) Once business has been properly brought before the meeting in
accordance with the foregoing procedures, nothing herein shall be deemed to
preclude discussion by any stockholder of any such business; provided,
however, that if the stockholder bringing such matter before the meeting
withdraws such matter, such matter shall no longer be properly before the
meeting.
(ii) The chairman of a meeting of stockholders may, if the facts
warrant, determine and declare to the meeting that business was not
properly brought before the meeting or a nomination was not made, in
accordance with the procedures prescribed in this Section 2.10, and if the
chairman should so determine, the chairman shall so declare to the meeting
and such business shall not be transacted or such defective nomination
shall be disregarded.
2.11 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the Chief Executive Officer, if such office has been filled, and,
if not or if the Chief Executive Officer is absent or otherwise unable to act,
the President, shall preside at all meetings of stockholders. The Secretary, or,
if the Secretary not be present, any Assistant Secretary shall keep the records
of each meeting of stockholders. In the absence or inability to act of any such
officer, such officer's duties shall be performed by the officer given the
authority to act for such absent or non-acting officer under these by-laws or by
some person appointed by the meeting.
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2.12 Inspectors. The board of directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, or if inspectors shall not have been appointed, the chairman of the
meeting may appoint one or more inspectors. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector at such meeting with strict impartiality and according
to the best of his ability. The inspectors shall determine the number of shares
of capital stock of the Corporation outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum and
the validity and effect of proxies and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
results and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request or matter
determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as an inspector of an
election of directors. Inspectors need not be stockholders.
ARTICLE 3
DIRECTORS
3.1 Management. The business and property of the Corporation shall be
managed by the board of directors. Subject to the restrictions imposed by law,
the certificate of incorporation of the Corporation or these by-laws, the board
of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of directors which
shall constitute the entire board of directors shall be determined by resolution
of the board of directors. Except as otherwise required by law, the certificate
of incorporation of the Corporation or these by-laws, the directors, other than
those who may be elected by the holders of any class or series of stock having a
preference over the shares of common stock of the Corporation as to dividends or
upon liquidation, shall be classified, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as
possible, one class to be originally elected for a term expiring at the annual
meeting of stockholders to be held in 2001, another class to be originally
elected for a term expiring at the annual meeting of stockholders to be held in
2002, and another class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 2003, with each class to hold
office until its successor is duly elected and qualified. At each succeeding
annual meeting of stockholders, directors elected to succeed those directors
whose terms then expire shall be elected for a term of office to expire at the
third succeeding annual meeting of stockholders after their election. Directors
shall be elected at an annual meeting at which a quorum is present by a
plurality of the votes of the shares present in person or represented by proxy
and entitled to vote on the election of directors. None of the directors need be
a stockholder of the Corporation or a resident of the State of Delaware. Each
director must have attained the age of majority.
3.3 Change in Number. If the number of directors is changed, any increase
or decrease shall be apportioned among the classes so as to maintain the number
of directors in each
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class as nearly equal as possible, and any additional director of any class
elected to fill a vacancy resulting from an increase in such class shall hold
office for a term that shall coincide with the remaining term of that class, but
in no case will a decrease in the number of directors shorten the term of any
incumbent director.
3.4 Removal. Except as otherwise restricted by statute, the certificate of
incorporation of the Corporation or these by-laws, any director or the entire
board of directors may be removed from office only for cause by the holders of a
majority of the shares then entitled to vote at an election of directors.
3.5 Vacancies. Unless otherwise provided in the certificate of
incorporation or these by-laws:
(i) Any vacancies on the board of directors resulting from death,
resignation, disqualification, removal, or other causes unless the board of
directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders, and except as otherwise
provided by law, shall be filled only by the affirmative vote of a majority
of the remaining directors then in office, even though less than a quorum
of the board of directors, or by a sole remaining director, and not by the
stockholders. Each director so chosen shall hold office for the remainder
of the full term of the class of directors in which the new directorship
was created or the vacancy occurred and until his successor is elected and
qualified or, if earlier, until his death, resignation or removal from
office.
(ii) 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 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.
Except as otherwise provided in these by-laws, when one or more directors shall
resign from the board of directors, effective at a future date, a majority of
the directors then in office, including those who have so resigned, shall have
the 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 as provided in these by-laws with respect to the
filling of other vacancies.
3.6 Meetings of Directors. The directors may hold their meetings and may
have an office and keep the books of the Corporation, except as otherwise
provided by statute, in such place or places within or without the State of
Delaware as the board of directors may from time to time determine or as shall
be specified in the notice of such meeting or duly executed waiver of notice of
such meeting.
3.7 Election of Officers. At the first meeting of the board of directors
after each annual meeting of stockholders at which a quorum shall be present,
the board of directors shall elect the officers of the Corporation.
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3.8 Regular Meetings. Regular meetings of the board of directors shall be
held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.9 Special Meetings. Special meetings of the board of directors shall be
held whenever called by the Chairman of the Board, the Chief Executive Officer,
the President or any director.
3.10 Notice. The Secretary shall give notice of each special meeting to
each director either by being mailed on at least the third day prior to the date
of the meeting or by being telegraphed, faxed or given personally or by
telephone at least 24 hours before the meeting. Notice of any such meeting need
not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
protesting, prior to or at its commencement, the lack of notice to him. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the board of directors, a
majority of the directors fixed in the manner provided in these by-laws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there be less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the certificate of incorporation of the Corporation or these by-laws, the act of
a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors. At any time that the
certificate of incorporation of the Corporation provides that directors elected
by the holders of a class or series of stock shall have more or less than one
vote per director on any matter, every reference in these by-laws to a majority
or other proportion of directors shall refer to a majority or other proportion
of the votes of such directors.
3.12 Procedure. At meetings of the board of directors, business shall be
transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
not or if the Chairman of the Board is absent or otherwise unable to act, the
Chief Executive Officer, if such office has been filled, and, if not or if the
Chief Executive Officer is absent or otherwise unable to act, the President,
shall preside at all meetings of the board of directors. In the absence or
inability to act of either such officer, a chairman shall be chosen by the board
of directors from among the directors present. The Secretary of the Corporation
shall act as the secretary of each meeting of the board of directors unless the
board of directors appoints another person to act as secretary of the meeting.
The board of directors shall keep regular minutes of its proceedings which shall
be placed in the minute book of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who is present
at a meeting of the board of directors at which action on any corporate matter
is taken shall be presumed to have assented to the action unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as secretary of the
meeting before the adjournment thereof or shall forward any dissent by certified
or registered
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mail to the Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
3.14 Compensation. The board of directors shall have the authority to fix
the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof, provided that nothing contained herein shall
be construed to preclude any director from serving the Corporation in any other
capacity or receiving compensation therefor.
3.15 Telephone Meetings. Members of the board of directors and members of
a committee of the board of directors may participate in and hold a meeting of
such board of directors or committee by means of a conference telephone or
similar communications equipment by means of which persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
3.16 Action Without a Meeting. Unless otherwise restricted by the
certificate of incorporation of the Corporation or by these by-laws, any action
required or permitted to be taken at a meeting of the board of directors, or of
any committee of the board of directors, may be taken without a meeting if a
consent or consents in writing, setting forth the action so taken, shall be
signed by all the directors or all the committee members, as the case may be,
entitled to vote with respect to the subject matter thereof, and such consent
shall have the same force and effect as a vote of such directors or committee
members, as the case may be, and may be stated as such in any certificate or
document filed with the Secretary of State of the State of Delaware or in any
certificate delivered to any person. Such consent or consents shall be filed
with the minutes of proceedings of the board of directors or committee, as the
case may be.
ARTICLE 4
COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted by a
majority of the entire board of directors, designate one or more committees.
4.2 Number; Qualification; Term. Each committee shall consist of one or
more directors appointed by resolution adopted by a majority of the entire board
of directors. The number of committee members may be increased or decreased from
time to time by resolution adopted by a majority of the entire board of
directors. Each committee member shall serve as such until the earliest of (a)
the expiration of his term as director, (b) his resignation as a committee
member or as a director or (c) his removal as a committee member or as a
director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
authority of the board of directors in the management of the business and
property of the Corporation except to the extent expressly restricted by law,
the certificate of incorporation of the Corporation or these by-laws.
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4.4 Committee Changes. The board of directors shall have the power at any
time to fill vacancies in, to change the membership of and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may designate
one or more directors as alternate members of any committee. Any such alternate
member may replace any absent or disqualified member at any meeting of the
committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such 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.
4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at 24 hours before such special meeting. Neither the business to be transacted
at, nor the purpose of, any special meeting of any committee need be specified
in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of the
number of members designated by the board of directors shall constitute a quorum
for the transaction of business. If a quorum is not present at a meeting of any
committee, a majority of the members present may adjourn the meeting from time
to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the certificate of incorporation of
the Corporation or these by-laws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to be
prepared and shall report the same to the board of directors upon the request of
the board of directors. The minutes of the proceedings of each committee shall
be delivered to the Secretary of the Corporation for placement in the minute
book of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board of
directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the delegation
of authority to it shall not operate to relieve the board of directors or any
director of any responsibility imposed by law upon the board of directors or
such director.
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ARTICLE 5
NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation of the
Corporation or these by-laws notice is required to be given to any committee
member, director or stockholder and no provision is made as to how such notice
shall be given, personal notice shall not be required and any such notice may be
given (a) in writing, by mail, postage prepaid, addressed to such committee
member, director or stockholder at his address as it appears on the books or (in
the case of a stockholder) the stock transfer records of the Corporation, or (b)
by any other method permitted by law (including but not limited to overnight
courier service, telegram, telex or facsimile). Any notice required or permitted
to be given by mail shall be deemed to be delivered and given at the time when
the same is deposited in the United States mail as aforesaid. Any notice
required or permitted to be given by overnight courier service shall be deemed
to be delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex or facsimile shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation or these by-laws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice. Attendance of a stockholder, director or committee member
at a meeting shall constitute a waiver of notice of such meeting, except where
such person attends for the express purpose of objecting to the transaction of
any business on the ground that the meeting is not lawfully called or convened.
ARTICLE 6
OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation shall
be a President, a Secretary and such other officers as the board of directors
may from time to time elect or appoint, including a Chairman of the Board, a
Chief Executive Officer, a Chief Financial Officer, a Treasurer, and one or more
Vice Presidents (with each Vice President to have such descriptive title, if
any, as the board of directors shall determine), Assistant Secretaries,
Assistant Treasurers and other officers. Each officer shall hold office until
his successor shall have been duly elected and shall have qualified, until his
death or until he shall resign or shall have been removed in the manner
hereinafter provided. Any two or more offices may be held by the same person.
None of the officers need be a stockholder or a director of the Corporation or a
resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract
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rights, if any, of the person so removed. Election or appointment of an officer
or agent shall not of itself create contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation (by
death, resignation, removal or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such duties
in the management of the Corporation as are provided in these by-laws or as may
be determined by resolution of the board of directors not inconsistent with
these by-laws.
6.5 Compensation. The compensation, if any, of officers and agents shall
be fixed from time to time by the board of directors; provided, however, that
the board of directors may delegate the power to determine the compensation of
any officer and agent (other than the officer to whom such power is delegated)
to the Chairman of the Board, the Chief Executive Officer, the President or a
committee of directors.
6.6 Chairman of the Board. The Chairman of the Board, if elected by the
board of directors, shall have such powers and duties as may be prescribed by
the board of directors. Such officer shall preside at all meetings of the
stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 Chief Executive Officer. The Chief Executive Officer, if elected by
the board of directors, shall have, subject to the board of directors, general
executive charge, management and control of the properties and operations of the
Corporation in the ordinary course of its business, with all powers with respect
to such properties and operations as may be reasonably incident to such
responsibilities. The Chief Executive Officer may sign, execute and deliver in
the name of the Corporation all deeds, mortgages, bonds, leases, contracts or
other instruments either when specially authorized by the board of directors or
when required or deemed necessary or advisable by him in the ordinary conduct of
the Corporation's normal business, except in cases where the signing and
execution thereof shall be expressly delegated by these by-laws to some other
officer or agent of the Corporation or shall be required by law or otherwise to
be signed or executed by some other officer or agent. The Chief Executive
Officer may cause the seal of the Corporation, if any, to be affixed to any
instrument requiring the same. If the board of directors has not elected a
Chairman of the Board or in the absence or inability to act of the Chairman of
the Board, the Chief Executive Officer shall exercise all of the powers and
discharge all of the duties of the Chairman of the Board. As between the
Corporation and third parties, any action taken by the Chief Executive Officer
in the performance of the duties of the Chairman of the Board shall be
conclusive evidence that there is no Chairman of the Board or that the Chairman
of the Board is absent or unable to act.
6.8 President. The President, if any, shall perform such duties as are
conferred upon him by these by-laws or as may from time to time be assigned to
him by the Chairman of the Board, the Chief Executive Officer, if any, or the
board of directors. As determined by the board of directors, the President
shall, in the absence or disability of the Chairman of the Board and the Chief
Executive Officer, perform the duties and exercise the powers of the Chairman of
the Board and the Chief Executive Officer and shall perform such other duties as
the board of directors may from time to time prescribe. As between the
Corporation and third parties, any
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action taken by the President in the performance of the duties of the Chairman
of the Board and the Chief Executive Officer shall be conclusive evidence of the
absence or inability to act of the Chairman of the Board and the Chief Executive
Officer at the time such action was taken.
6.9 Vice Presidents. If the board of directors elects or appoints one or
more Vice Presidents, each Vice President shall have such powers and duties as
may be assigned to him by the board of directors, the Chairman of the Board, the
Chief Executive Officer or the President, and (in order of their seniority as
determined by the board of directors or, in the absence of such determination,
as determined by the length of time they have held the office of Vice President)
shall exercise the powers of the President during that officer's absence or
inability to act. As between the Corporation and third parties, any action taken
by a Vice President in the performance of the duties of the President shall be
conclusive evidence of the absence or inability to act of the President at the
time such action was taken.
6.10 Treasurer. If the board of directors elects or appoints a Treasurer,
the Treasurer shall have custody of the Corporation's funds and securities,
shall keep full and accurate account of receipts and disbursements, shall
deposit all monies and valuable effects in the name and to the credit of the
Corporation in such depository or depositories as may be designated by the board
of directors and shall perform such other duties as may be prescribed by the
board of directors, the Chairman of the Board, the Chief Executive Officer or
the President.
6.11 Assistant Treasurers. If the board of directors elects or appoints
one or more Assistant Treasurers, each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the Chief Executive Officer or the President, and (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
6.12 Secretary. Except as otherwise provided in these by-laws, the
Secretary shall keep the minutes of all meetings of the board of directors and
stockholders in books provided for that purpose, and he shall attend to the
giving and servicing of all notices. He may sign with the Chairman of the Board,
the Chief Executive Officer or the President, in the name of the Corporation,
all contracts of the Corporation and affix the seal of the Corporation thereto.
He may sign with the Chairman of the Board, the Chief Executive Officer or the
President all certificates for shares of stock of the Corporation, and he shall
have charge of the certificate books, transfer books and stock papers as the
board of directors may direct, all of which shall at all reasonable times be
open to inspection by any director upon application at the office of the
Corporation during business hours. He shall in general perform all duties
incident to the office of the Secretary, subject to the control of the board of
directors, the Chairman of the Board, the Chief Executive Officer and the
President.
6.13 Assistant Secretaries. If the board of directors elects or appoints
one or more Assistant Secretaries, each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the Chief Executive Officer or the President, and (in the
order of their seniority as determined by the board of directors or, in the
absence of such a determination, as determined by the length of time they
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have held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE 7
CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board, the
Chief Executive Officer or the President or a Vice President and also by the
Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any and all signatures on the certificate may be a facsimile and may
be sealed with the seal of the Corporation or a facsimile thereof. If any
officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed upon, a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue. The certificates
shall be consecutively numbered and shall be entered in the books of the
Corporation as they are issued and shall exhibit the holder's name and the
number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of directors
may direct a new certificate or certificates to be issued in place of a
certificate or certificates theretofore issued by the Corporation and alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate or certificates representing shares to be lost
or destroyed. When authorizing such issue of a new certificate or certificates
the board of directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond with a surety or
sureties satisfactory to the Corporation in such sum as it may direct as
indemnity against any claim or expense resulting from a claim that may be made
against the Corporation with respect to the certificate or certificates alleged
to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to treat
the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
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7.5 Regulations. The board of directors shall have the power and authority
to make all such rules and regulations as they may deem expedient concerning the
issue, transfer and registration or the replacement of certificates for shares
of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority to
provide that certificates representing shares of stock bear such legends as the
board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE 8
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEE AND OTHER AGENTS
8.1 Indemnification of Directors and Officers. The Corporation shall, to
the maximum extent and in the manner permitted by the Delaware General
Corporation Law, indemnify each of its directors and officers against expenses
(including attorneys' fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding, arising by
reason of the fact that such person is or was an agent of the Corporation;
provided, however, that the Corporation may modify the extent of such
indemnification by individual contracts with its directors and executive
officers and, provided, further, that the Corporation shall not be required to
indemnify any director or officer in connection with any proceeding (or part
thereof) initiated by such person unless (a) such indemnification is expressly
required to be made by law, (b) the proceeding was authorized in advance by the
board of directors of the Corporation, (c) such indemnification is provided by
the Corporation, in its sole discretion, pursuant to the powers vested in the
Corporation under the Delaware General Corporation Law or (d) such
indemnification is required to be made pursuant to an individual contract. For
purposes of this Section 8.1, a "director" or "officer" of the Corporation
includes any person (i) who is or was a director or officer of the Corporation,
(ii) who is or was serving at the request of the Corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, or (iii) who was a director or officer of a Corporation which was a
predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation.
8.2 Indemnification of Others. The Corporation shall have the power, to
the maximum extent and in the manner permitted by the Delaware General
Corporation Law, to indemnify each of its employees and agents (other than
directors and officers) against expenses (including attorneys' fees), judgments,
fines, settlements and other amounts actually and reasonably incurred in
connection with any proceeding, arising by reason of the fact that such person
is or was an agent of the Corporation. For purposes of this Section 8.2, an
"employee" or "agent" of the Corporation (other than a director or officer)
includes any person (a) who is or was an employee or agent of the Corporation,
(b) who is or was serving at the request of the Corporation as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, or (c) who was an employee or agent of a Corporation which was a
predecessor corporation of the Corporation or of another enterprise at the
request of such predecessor corporation.
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8.3 Insurance. The Corporation may 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 or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of the Delaware
General Corporation.
8.4 Expenses. (a) The Corporation shall advance to any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of the Corporation, or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, prior to the final disposition of the
proceeding, promptly following request therefor, all expenses incurred by any
director or officer in connection with such proceeding, upon receipt of an
undertaking by or on behalf of such person to repay said amounts if it should be
determined ultimately that such person is not entitled to be indemnified under
these by-laws or otherwise; provided, however, that the Corporation shall not be
required to advance expenses to any director or officer in connection with any
proceeding (or part thereof) initiated by such person unless the proceeding was
authorized in advance by the board of directors of the Corporation.
(b) Notwithstanding the foregoing, unless otherwise determined pursuant to
Section 8.5, no advance shall be made by the Corporation to an officer of the
Corporation (except by reason of the fact that such officer is or was a director
of the Corporation in which event this paragraph shall not apply) in any action,
suit or proceeding, whether civil, criminal, administrative or investigative, if
a determination is reasonably and promptly made (i) by the board of directors by
a majority vote of a quorum consisting of directors who were not parties to the
proceeding, or (ii) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the Corporation.
8.5 Non-Exclusivity of Rights. The rights conferred on any person by these
by-laws shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of the certificate of
incorporation, by-laws, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding office. The Corporation is specifically
authorized to enter into individual contracts with any or all of its directors,
officers, employees or agents respecting indemnification and advances, to the
fullest extent not prohibited by the Delaware General Corporation Law.
8.6 Survival of Rights. The rights conferred on any person by these by-
laws shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
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8.7 Contractual Nature; Amendments. The rights granted pursuant to this
Article 8 shall be deemed contract rights, and any repeal or modification of
these by-laws shall only be prospective and shall not affect the rights under
these by-laws in effect at the time of the alleged occurrence of any action or
omission to act that is the cause of any proceeding against any agent of the
Corporation.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in property
or in shares of stock of the Corporation. Such declaration and payment shall be
at the discretion of the board of directors.
9.2 Reserves. There may be created by the board of directors out of funds
of the Corporation legally available therefor such reserve or reserves as the
directors from time to time, in their discretion, consider proper to provide for
contingencies, to equalize dividends or to repair or maintain any property of
the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in their discretion.
9.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors, and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
9.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by the
board of directors; provided that if such fiscal year is not fixed by the board
of directors and the selection of the fiscal year is not expressly deferred by
the board of directors, the fiscal year shall commence on October 1 of each year
and end the following September 30.
9.5 Seal. The seal of the Corporation shall be such as from time to time
may be approved by the board of directors.
9.6 Resignations. Any director, committee member or officer may resign by
so stating at any meeting of the board of directors or by giving written notice
to the board of directors, the Chairman of the Board, the Chief Executive
Officer, the President or the Secretary. Such resignation shall take effect at
the time specified therein or, if no time is specified therein, immediately upon
its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
9.7 Securities of Other Corporations. The Chairman of the Board, the Chief
Executive Officer, the President or any Vice President of the Corporation shall
have the power and authority to transfer, endorse for transfer, vote, consent or
take any other action with respect to any securities of another issuer which may
be held or owned by the Corporation and to make, execute and deliver any waiver,
proxy or consent with respect to any such securities.
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9.8 Invalid Provisions. If any part of these by-laws shall be held invalid
or inoperative for any reason, the remaining parts, so far as it is possible and
reasonable, shall remain valid and operative.
9.9 Mortgages, etc. With respect to any deed, deed of trust, mortgage or
other instrument executed by the Corporation through its duly authorized officer
or officers, the attestation to such execution by the Secretary of the
Corporation shall not be necessary to constitute such deed, deed of trust,
mortgage or other instrument a valid and binding obligation against the
Corporation unless the resolutions, if any, of the board of directors
authorizing such execution expressly state that such attestation is necessary,
or unless such attestation is required by law.
9.10 Headings. The headings used in these by-laws have been inserted for
administrative convenience only and do not constitute matter to be construed in
interpretation.
9.11 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
9.12 Amendments. These by-laws may be altered, amended or repealed, in
whole or in part, and new by-laws may be adopted (a) by the affirmative vote of
stockholders with at least a majority of the combined votes of Voting Stock;
provided, however, that any proposed alteration, amendment or repeal of, or the
adoption of any by-law inconsistent with, Sections 2.2, 2.10 and 2.13 of Article
2, Sections 3.2, 3.4 and 3.5 of Article 3 and Section 9.12 of this Article 9 of
these by-laws or this sentence, by the stockholders shall require the
affirmative combined vote of shares representing not less than 80% of the
combined voting power of Voting Stock; and provided further, however, that in
the case of any such stockholder action at a meeting of stockholders, notice of
the proposed alteration, amendment, repeal or adoption of the new by-law or by-
laws must be contained in the notice of such meeting, or (b) by action of the
board of directors. Notwithstanding the foregoing, in the event any amendment to
these by-laws would result in a direct conflict between the provisions of these
by-laws and the provisions of the certificate of incorporation of the
Corporation, the amendment to these by-laws shall not be effective until the
amendment to the certificate of incorporation is effective.
The undersigned, the Secretary of the Corporation, hereby certifies that
the foregoing by-laws were adopted by unanimous consent by the directors of the
Corporation as of May 16, 2000.
/s/
--------------------------------
Neal Klegerman, Secretary
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