Exhibit 3.1
BYLAWS OF
Prodeo Technologies, Inc.
(As Adopted August 21, 1998
and amended August 28, 2000)
1. OFFICES
1.1. REGISTERED OFFICE. The registered office of the Corporation is
Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County
of New Castle, State of Delaware.
1.2. OTHER OFFICES. The Corporation also may have offices at such other
places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
2. SHAREHOLDERS
2.1. SHAREHOLDER MEETINGS.
(a) TIME AND PLACE OF MEETINGS. Meetings of the shareholders shall be
held at such times and places, either within or without the State of Delaware,
as may from time to time be fixed by the Board of Directors and stated in the
notices or waivers of notice of such meetings.
(b) ANNUAL MEETING. Annual meetings of shareholders shall be held on
the first Friday in the month of May or when otherwise designated by the Board
of Directors. If the meeting date falls on a legal holiday, then the meeting
shall be held on the next secular day following, or at such other date and time
as may be set and stated in the notice of the meeting. At the annual meeting,
shareholders shall elect a board of directors and transact such other business
as properly may be brought before the annual meeting.
(c) SPECIAL MEETINGS. Special meetings of the shareholders of the
Corporation for any purpose or purposes may be called at any time only by the
President, or the Board of Directors pursuant to a resolution approved by a
majority of the whole Board of Directors, or at the request in writing of
shareholders owning at least 10% of the capital stock issued and outstanding and
entitled to vote. Business transacted at any special meeting of the shareholders
shall be limited to the purposes stated in the notice of such meeting.
(d) NOTICE OF MEETINGS. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, written notice of each meeting of
the shareholders must be given not less than 10 days nor more than 60 days
before the date of such meeting to each shareholder entitled to vote at the
<PAGE>
meeting, directed to such shareholder's address as it appears on the books of
the Corporation, such notice to specify the place, date, hour and purpose or
purposes of such meeting. If mailed, such notice will be deemed to be given when
deposited in the United States mail, postage prepaid, addressed to the
shareholder at his address as it appears on the stock ledger of the Corporation.
When a meeting of the shareholders is adjourned to another time or place, notice
need not be given of when and where such adjourned meeting will resume if the
time and place of the resumed meeting are announced at the meeting of the
shareholders at which the adjournment is taken, unless the adjournment is for
more than 30 days or unless after the adjournment a new record date or time is
fixed for such adjourned meeting, in which event a notice of such adjourned
meeting must be given to each shareholder of record entitled to vote at the
adjourned meeting. Notice of the time, place and purpose of any meeting of the
shareholders may be waived in writing either before or after such meeting and
will be waived by any shareholder by such shareholder's attendance at such
meeting in person or by proxy. Any shareholder so waiving notice of a meeting
will be bound by the proceedings of that meeting in all respects as if due
notice of that meeting had been given.
(e) QUORUM. Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, the holders of not less than a majority of the
shares entitled to vote at any meeting of the shareholders, present in person or
by proxy, will constitute a quorum and the affirmative vote of the majority of
such quorum will be deemed the act of the shareholders. If a quorum fails to
attend any meeting of the shareholders, the presiding officer of such meeting
may adjourn such meeting from time to time to another place, date or time, until
a quorum is present or represented. At such a previously adjourned meeting which
is resumed and at which a quorum is present or represented, any business may be
transacted that might have been transacted at the meeting of the shareholders as
originally noticed. The foregoing notwithstanding, if a notice of any adjourned
special meeting of the shareholders is sent to all shareholders entitled to vote
at such meeting which states that such adjourned special meeting will be held
with those present in person or by proxy constituting a quorum, then, except as
otherwise required by law, those present at such adjourned special meeting of
the shareholders will constitute a quorum and all matters will be determined by
a majority of the votes cast at such special meeting.
2.2. DETERMINATION OF SHAREHOLDERS ENTITLED TO NOTICE AND TO VOTE. To
determine the shareholders entitled to notice of any meeting of the shareholders
or to vote at such meeting, the Board of Directors may fix in advance a record
date as provided in Section 7.1 of these Bylaws, or if no record date is fixed
by the Board of Directors, a record date will be the day before notice is sent.
2.3. VOTING.
(a) Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, each shareholder present in person or by proxy at
a meeting of the shareholders will be entitled to one vote for each full share
of stock registered in the name of such shareholder on the record date fixed by
the Board of Directors, these Bylaws or by law of the determination of
shareholders entitled to vote at such meeting.
(b) Every shareholder entitled to vote at a meeting of the
shareholders may do so either (i) in person or (ii) by one or more agents
authorized by a written proxy executed by the shareholder or such shareholder's
duly authorized agent, whether by manual signature, typewriting, fax or
otherwise as permitted by law. No proxy shall be voted on after three years from
its date, unless the proxy provides for a longer period.
2
<PAGE>
(c) Voting may be by voice or by ballot, as the presiding officer of
the meeting of the shareholders determines in his sole discretion. On a vote by
ballot, each ballot must be signed by the shareholder voting, or by such
shareholder's proxy, and must state the number of shares voted.
(d) In advance of or at any meeting of the shareholders, the Chairman
of the Board or President may appoint one or more persons as inspectors of
election (the "Inspectors") to act at such meeting. Such Inspectors will take
charge of the ballots at such meeting. After the balloting on any question, the
Inspectors will count the ballots cast and make a written report to the
secretary of such meeting of the results. Subject to the direction of the
presiding officer of the meeting, the duties of such Inspectors may further
include without limitation: determining the number of shares outstanding and the
voting power of each; the shares represented at the meeting; the existence of a
quorum; the authenticity, validity, and effect of proxies; receiving votes,
ballots, or consents; hearing and determining all challenges and questions in
any way arising in connection with the right to vote; counting and tabulating
all votes of consents and determining when the polls shall close; determining
the result; and doing such acts as may be proper to conduct the election or vote
with fairness to all shareholders. An Inspector need not be a shareholder,
officer or director of the Corporation. Any officer of the Corporation may be
appointed as an Inspector on any question other than a vote for or against such
officer's election to any position with the Corporation or on any other
questions in which such officer may be directly interested. If there are three
or more Inspectors, the determination, report or certificate of a majority of
such Inspectors will be effective as if unanimously made by all Inspectors.
2.4. LIST OF SHAREHOLDERS. The officer who has charge of the stock ledger
of the Corporation will prepare and make available, at least 10 days before
every meeting of shareholders, a complete list of the shareholders entitled to
vote at it, arranged in alphabetical order, showing the address and the number
of shares registered in the name of each such shareholder. Such list will be
open to the examination of any shareholder, for any purpose germane to such
meeting, either at a place within the city where such meeting is to be held and
which place must be specified in the notice of such meeting, or, if not so
specified, at the place where such meeting is to be held. The list also must be
produced and kept at the time and place of the meeting of the shareholders
during the whole time thereof, and may be inspected by any shareholder who is
present.
2.5. ACTION BY CONSENT OF SHAREHOLDERS. Any action that can be taken at any
annual or special meeting of the Shareholders of the Corporation may be taken
without a meeting, prior notice or a vote if a consent or consents in writing
setting forth the action so taken is signed by the shareholders holding the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote on such action were present
and voted. The Secretary of the Corporation will record such written consent in
the Minute Book of the Corporation under its proper date and to deliver such
written consent to the Corporation's registered office.
2.6. CONDUCT OF MEETINGS. The presiding officer of the meeting will have
full and complete authority to determine the agenda, to set the procedures and
order the conduct of meetings, all as deemed appropriate by such person in his
sole discretion with due regard to the orderly conduct of business.
3
<PAGE>
2.7. NOTICE OF AGENDA MATTERS. If a shareholder wishes to present to the
Chairman of the Board or the President an item for consideration as an agenda
item for a meeting of shareholders, he must give timely notice to the Secretary
of the Corporation and give a brief description of the business desired to be
brought before the meeting. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Corporation, not less than 60 days nor more than 90 days prior to the meeting;
provided, however, that in the event that less than 70 days' notice or prior
public disclosure of the date of the meeting is given or made to shareholders,
notice by the shareholder to be timely must be so received not later than the
close of business on the fifteenth day following the date on which such notice
of the date of the meeting was mailed or such public disclosure was made and
provided further that any other time period necessary to comply with federal
proxy solicitation rules or other regulations shall be deemed to be timely.
3. BOARD OF DIRECTORS
3.1. GENERAL POWERS. Unless otherwise restricted by law, the Certificate of
Incorporation or these Bylaws as to action which shall be authorized or approved
by the shareholders, and subject to the duties of directors as prescribed by
these Bylaws, all corporate powers shall be exercised by or under the authority
of, and the business and affairs of the Corporation shall be controlled by, the
Board of Directors.
3.2. ELECTION OF DIRECTORS.
(a) CLASSIFICATION AND TERMS OF DIRECTORS. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors consisting of not less than two directors nor more than nine
directors, the exact number of directors to be determined from time to time by
resolution adopted by the Board of Directors. The directors need not be
shareholders and may succeed themselves. The directors shall be divided into two
classes, designated Class I and Class II. Each class shall consist, as nearly as
may be possible, of one-half of the total number of directors constituting the
entire Board of Directors. The terms of the initial Class I directors shall
terminate on the date of the first annual meeting of stockholders held after the
effective date of this Article 3.2. At each annual meeting of stockholders
beginning with the first annual meeting held after the effective date of this
Article 3.2, successors to the class of directors whose term expires at that
annual meeting shall be elected for a two-year term. 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 class as nearly equal as
possible, and any additional directors 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 terms of that class, but in no case will a decrease
in the number of directors shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any vacancy on the Board of Directors, howsoever resulting
(including without limitation newly created directorships), may be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director.
4
<PAGE>
Any director elected to fill a vacancy shall hold office for a term that
shall coincide with the term of the class to which such director shall have been
elected. Any or all of the directors of the Corporation may be removed from
office at any time, but only for cause and only by the affirmative vote of the
holders of a majority of the outstanding shares of the Corporation then entitled
to vote generally in the election of directors.
(b) RESIGNATION. Any director may resign from the Board of Directors at any
time by giving written notice to the Secretary of the Corporation. Any such
resignation shall take effect at the time specified therein, or if the time when
such resignation shall become effective shall not be so specified, then such
resignation shall take effect immediately upon its receipt by the Secretary;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
(c) NOMINATION OF DIRECTORS. Candidates for director of the Corporation
shall be nominated only either by:
(i) the Board of Directors or a committee appointed by the Board
of Directors, or
(ii) nomination at any shareholders' meeting by or on behalf of
any shareholder entitled to vote at it; provided, that written notice of
such shareholder's intent to make such nomination or nominations must be
given, either by personal delivery or by United States certified mail,
postage prepaid, to the Secretary of the Corporation not later than (l)
with respect to an election to be held at an annual meeting of the
shareholders, 20 days in advance of such annual meeting, and (2) with
respect to an election to be held at a special meeting of the shareholders
for the election of directors, the close of business on the 15th day
following the date on which notice of such special meeting is first given
to the shareholders entitled to vote at it. Each such notice by a
shareholder must set forth: (l) the name and address of the (A) shareholder
who intends to make the nomination and (B) person or persons to be
nominated; (2) a representation that the shareholder is a holder of record
of stock of the Corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (3) a description of all arrangements or
understandings between the shareholder 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 the shareholder; (4) such other
information regarding each nominee proposed by such shareholder as would be
required to be included in a proxy or information statement filed with the
Securities and Exchange Commission pursuant to the proxy rules promulgated
under the Securities Exchange Act of 1934, as amended, or any successor
statute thereto, had the nominee been nominated, or intended to be
nominated, by the Board of Directors; and (5) the manually signed consent
of each nominee to serve as a director of the Corporation if so elected.
The presiding officer of the meeting of the shareholders may refuse to
acknowledge the nominee of any person not made in compliance with the
foregoing procedure.
5
<PAGE>
(d) VACANCIES. Vacancies and new directorships resulting from an
increase in the authorized number of directors may be filled by a majority of
the directors then in office, though less than a quorum, or by the sole
remaining director. Directors chosen as described in this Section 3.2(d) will
hold office until their successors are duly elected at the annual meeting and
qualified. If no directors are in office, an election may be held as provided by
statute.
3.3. MEETINGS OF THE BOARD OF DIRECTORS.
(a) REGULAR MEETINGS. Regular meetings of the Board of Directors will
be held without call at the following times:
(i) at such times as the Board of Directors may from time to time
by resolution determine; and
(ii) one-half hour prior to any special meeting of the
shareholders and immediately following the adjournment of any annual or
special meeting of the shareholders.
Notice of all such regular meetings hereby is dispensed with.
(b) SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the Chairman, the President, or the Board of Directors pursuant to
a resolution approved by a majority of the whole Board of Directors. Notice of
the time and place of special meetings of the Board of Directors will be given
by the Secretary or an Assistant Secretary of the Corporation, or by any other
officer authorized by the Board of Directors. Such notice will be given to each
director personally or by mail, messenger, telephone or fax at such director's
business or residence address. Notice by mail must be deposited in the United
States mail, postage prepaid, not later than the fifth day prior to the date
fixed for such special meeting. Notice by telephone or fax must be sent, and
notice given personally or by messenger must be delivered, at least 24 hours
prior to the time set for such special meeting. Notice of a special meeting of
the Board of Directors need not contain a statement of the purpose of such
special meeting.
(c) ADJOURNED MEETINGS. A majority of directors present at any regular
or special meeting of the Board of Directors or any committee thereof, whether
or not constituting a quorum, may adjourn any meeting from time to time until a
quorum is present or otherwise. Notice of the time and place of resuming any
adjourned meeting will not be required if the time and place are fixed during
the meeting before it is adjourned.
(d) PLACE OF MEETINGS. Meetings of the Board of Directors, both
regular and special, may be held either within or without the State of Delaware.
(e) PARTICIPATION BY TELEPHONE OR VIDEO CONFERENCE. Members of the
Board of Directors or any committee of it may participate in any meeting of the
Board of Directors or committee through the use of conference telephone, video
6
<PAGE>
or similar communications equipment. So long as all members participating in
such meeting can hear and speak to one another, such participation will
constitute presence in person at such meeting.
(f) QUORUM. At all meetings of the Board of Directors or any committee
of it, a majority of the total number of directors of the entire then authorized
Board of Directors or such committee will constitute a quorum for the
transaction of business. The act of a majority of the directors present at any
such meeting at which there is a quorum will be the act of the Board of
Directors or any committee, except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these Bylaws. A meeting of the Board of
Directors or any committee at which a quorum initially is present may continue
to transact business notwithstanding the withdrawal of directors so long as any
action is approved by at least a majority of the required quorum for such
meeting.
(g) WAIVER OF NOTICE. The transactions of any meeting of the Board of
Directors or any committee of it, however called and noticed or wherever held,
will be as valid as though had at a meeting duly held after regular call and
notice, if a quorum be present and if, either before or after the meeting, each
of the directors not present signs a written waiver of notice, a consent to hold
such meeting, or an approval of the minutes of it. All such waivers, consents or
approvals must be filed with the corporate records or made a part of the minutes
of the meeting.
3.4. ACTION WITHOUT MEETING. Any action required or permitted to be taken
by the Board of Directors at any meeting or at any meeting of a committee may be
taken without a meeting if all members of the Board of Directors or such
committee consent in writing and the writing or writings are filed with the
minutes of the proceedings of the Board of Directors or such committee.
3.5. COMPENSATION OF DIRECTORS. Unless otherwise restricted by law, the
Certificate of Incorporation or these Bylaws, the Board of Directors have the
authority to fix the compensation of directors. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of
Directors, a stated salary as director or other compensation (i.e., stock
options). No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like compensation for
attending committee meetings.
3.6. COMMITTEES OF THE BOARD.
(a) COMMITTEES. The Board of Directors may, by resolution adopted by a
majority of the Board of Directors, designate one or more committees of the
Board of Directors, each committee to consist of one or more directors. Each
such committee, to the extent permitted by law, the Certificate of Incorporation
and these Bylaws, will have and may exercise such of the powers of the Board of
Directors in the management and affairs of the Corporation as may be prescribed
by the resolutions creating such committee. Such committee or committees will
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
7
<PAGE>
disqualification of a member of a committee, the member or members of such
committee who are 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. The Board of Directors has the power, at any time
for any reason, to change the members of any such committee, to fill vacancies,
and to discontinue any such committee.
(b) MINUTES OF MEETINGS. Each committee must keep regular minutes of
its meetings and report the same to the Board of Directors when required.
(c) AUDIT COMMITTEE. The Board of Directors may appoint an Audit
Committee consisting of at least two directors, none of whom will be current
employees of the Corporation. The Audit Committee will review the financial
affairs and procedures of the Corporation from time to time with management and
meet with the auditors of the Corporation to review the financial statements and
procedures.
(d) EXECUTIVE COMMITTEE. There may be an Executive Committee
consisting of at least two members of the Board of Directors elected by the
Board. Members of the Executive Committee will serve at the pleasure of the
Board of Directors and each member of the Executive Committee may be removed
with or without cause at any time by the Board of Directors. Vacancies will be
filled by the Board of Directors. The Executive Committee may exercise the
powers of the Board of Directors and the management of the business and affairs
of the corporation, but will not possess any authority prohibited to it by law.
3.7. INTERESTED DIRECTORS. In addition to the statutory and corporate
common law of the State of Delaware, no contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, will 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 committee of it which authorizes the
contract or transaction, or solely because his or their votes are counted for
such purpose if (i) the material facts as to his or their 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 of Directors 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; or (ii) the material facts as to his or their
relationship or interest and as to the contract or transaction are disclosed or
are known to the shareholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the shareholders;
or (iii) 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 it or the shareholders. 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.
8
<PAGE>
4. OFFICERS
4.1. OFFICERS.
(a) NUMBER. The officers of the Corporation will be chosen by the
Board of Directors and may include a Chairman of the Board of Directors (who
must be a director as chosen by the Board of Directors) and will include a
President and a Secretary. The Board of Directors also may appoint one or more
Treasurers, Vice Presidents, Assistant Secretaries or Assistant Treasurers and
such other officers and agents with such powers and duties as it deems
necessary. Any Vice President may be given such specific designation as may be
determined from time to time by the Board of Directors. Any number of offices
may be held by the same person, and unless otherwise required by law, the
Certificate of Incorporation or these Bylaws. The Board of Directors may
delegate to any other officer of the Corporation the power to choose such other
officers and to prescribe their respective duties and powers.
(b) ELECTION AND TERM OF OFFICE. The officers will be elected annually
by the Board of Directors at its regular meeting following the annual meeting of
the shareholders and each officer will hold office until the next annual
election of officers and until such officer's successor is elected and
qualified, or until such officer's death, resignation or removal. Any officer
may be removed at any time, with or without cause, by a vote of the majority of
the whole Board of Directors. Any vacancy occurring in any office may be filled
by the Board of Directors.
(c) SALARIES. The salaries of all officers of the Corporation will be
fixed by the Board of Directors or a committee of it from time to time.
4.2. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board of
Directors, if there be a Chairman, will preside at all meetings of the
shareholders and the Board of Directors and will have such other power and
authority as may from time to time be assigned by the Board of Directors.
4.3. PRESIDENT. The President will be the chief executive officer of the
Corporation, will preside at all meetings of the shareholders and the Board of
Directors (if a Chairman of the Board has not been elected), and will see that
all orders and resolutions of the Board of Directors are carried into effect.
Subject to the provisions of these Bylaws and to the direction of the Board of
Directors, the President will have the general and active management of the
business of the Corporation, may execute all contracts and any mortgages,
conveyances or other legal instruments in the name of and on behalf of the
Corporation, but this provision does not prohibit the delegation of such powers
by the Board of Directors to some other officer, agent or attorney-in-fact of
the Corporation.
4.4. VICE PRESIDENTS. In the absence or disability of the President, the
Vice Presidents in order of their rank as fixed by the Board of Directors, or if
not ranked, the Vice President designated by the Board of Directors, will
perform all the duties of the President, and when so acting will have all the
powers of, and be subject to all the restrictions upon, the President. The Vice
Presidents will have such other powers and perform such other duties as from
time to time may be prescribed for them, respectively, by the Board of Directors
or these Bylaws.
4.5. SECRETARY AND ASSISTANT SECRETARIES. The Secretary will record or
cause to be recorded, in books provided for the purpose, minutes of the meetings
of the shareholders, the Board of Directors and all committees of the Board of
Directors; see that all notices are duly given in accordance with the provisions
9
<PAGE>
of these Bylaws as required by law; be custodian of all corporate records (other
than financial) and of the seal of the Corporation, and have authority to affix
the seal to all documents requiring it and attest to the same; give, or cause to
be given, notice of all meetings of the shareholders and special meetings of the
Board of Directors; and, in general, will perform all duties incident to the
office of Secretary and such other duties as may, from time to time, be assigned
to him by the Board of Directors or by the President. At the request of the
Secretary, or in the Secretary's absence or disability, any Assistant Secretary
will perform any of the duties of the Secretary and, when so acting, will have
all the powers of, and be subject to all the restrictions upon, the Secretary.
4.6. TREASURER AND ASSISTANT TREASURERS. The Treasurer will keep or cause
to be kept the books of account of the Corporation and will render statements of
the financial affairs of the Corporation in such form and as often as required
by the Board of Directors or the President. The Treasurer, subject to the order
of the Board of Directors, will have custody of all funds and securities of the
Corporation and will deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors. He will disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such
disbursements. The Treasurer will perform all other duties commonly incident to
his office and will perform such other duties and have such other powers as the
Board of Directors or the President designates from time to time. At the request
of the Treasurer, or in the Treasurer's absence or disability, any Assistant
Treasurer may perform any of the duties of the Treasurer and, when so acting,
will have all the powers of, and be subject to all the restrictions upon, the
Treasurer. Except where by law the signature of the Treasurer is required, each
of the Assistant Treasurers will possess the same power as the Treasurer to sign
all certificates, contracts, obligations and other instruments of the
Corporation.
5. INDEMNIFICATION AND INSURANCE
5.1. RIGHT TO INDEMNIFICATION. Subject to the terms and conditions of this
Section 5, each officer or director of the Corporation who was or is made a
party or witness or is threatened to be made a party or witness to or is
otherwise involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), 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, officer, employee or agent of another corporation
or of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans (hereinafter an "indemnitee"), whether
the basis of such proceeding is alleged action or inaction in an official
capacity while serving as a director, officer, employee or agent, will be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification will continue as to an indemnitee who has
ceased to be a director, officer, employee or agent and will inure to the
benefit of the indemnitee's heirs, executors and administrators; provided,
10
<PAGE>
however, that, except as provided in this Section 5 with respect to proceedings
to enforce rights to indemnification, the Corporation will indemnify any such
indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation. The right to indemnification conferred in this
Section will include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if the law
requires, an advancement of expenses incurred by an indemnitee will be made only
upon delivery to the Corporation of an undertaking in the form then required by
the law (if any), by or on behalf of such indemnitee, with respect to the
repayment of amounts so advanced (hereinafter an "undertaking").
5.2. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim from an indemnitee under
Section 5.1 is not paid in full by the Corporation within sixty days after a
written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period will
be 20 days, the indemnitee may at any time thereafter bring a lawsuit against
the Corporation to recover the unpaid amount of the claim. If successful in
whole or in part in any such lawsuit or in a lawsuit brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking,
the indemnitee will be entitled to be paid also the expenses of prosecuting or
defending such lawsuit. In (i) any lawsuit brought by the indemnitee to enforce
a right to indemnification hereunder (but not in a lawsuit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) any lawsuit by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking the Corporation will be
entitled to recover such expenses upon a final adjudication that, the indemnitee
has not met the applicable standard of conduct set forth in the law. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior to the
commencement of such lawsuit that indemnification of the indemnitee is proper in
the circumstances because the indemnitee has met the applicable standard of
conduct set forth in the law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or its
shareholders) that the indemnitee has not met such applicable standard of
conduct, will create a presumption that the indemnitee has not met the
applicable standard or conduct or, in the case of such a lawsuit brought by the
indemnitee, be a defense to such lawsuit. In any lawsuit brought by the
indemnitee to enforce a right hereunder, or by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified or to such
advancement of expenses under this Section or otherwise will be on the
Corporation.
5.3. SPECIFIC LIMITATIONS ON INDEMNIFICATION. Notwithstanding anything in
this Section to the contrary, the Corporation will not be obligated to make any
payment to any indemnitee with respect to any proceeding (i) to the extent that
payment is actually made to the indemnitee under any insurance policy, or is
made to indemnitee by the Corporation or an affiliate thereof otherwise than
pursuant to this Section, (ii) for any expense, liability or loss in connection
with a proceeding settled without the Corporation's written consent, which
consent, however, must not be unreasonably withheld, (iii) for an accounting of
profits made from the purchase or sale by the indemnitee of securities of the
Corporation within the meaning of Section 16(b) of the Securities Exchange Act
of 1934, as amended, or similar provisions of any state statutory or common law,
or (iv) where prohibited by applicable law.
11
<PAGE>
5.4. CONTRACT. The provisions of this Section are a contract between the
Corporation and each director and officer who serves in such capacity at any
time while such Section is in effect, and any repeal or modification of this
Section will not affect any rights or obligations then existing with respect to
any state of facts existing during or before such repeal or modification or any
action, lawsuit or proceeding brought before or after such repeal or
modification based in whole or in part upon any such state of facts.
5.5. PARTIAL INDEMNITY. If the indemnitee is entitled under any provision
of this Section to indemnification by the Corporation for some or a portion of
the expenses, liabilities or losses incurred in connection with an action,
lawsuit or proceeding but not, however, for all of the total amount thereof, the
Corporation will nevertheless indemnify the indemnitee for the portion thereof
to which the indemnitee is entitled. Moreover, notwithstanding any other
provision of this Section, to the extent that the indemnitee has been successful
on the merits or otherwise in defense of any or all claims relating in whole or
in part to an action, lawsuit or proceeding or in defense of any issue or matter
therein, including dismissal without prejudice, the indemnitee will be
indemnified against all loss, expense and liability incurred in connection with
the portion of the action, lawsuit or proceeding with respect to which the
indemnitee was successful on the merits or otherwise.
5.6. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Section will not be exclusive of any
other right which any person may have or acquire in the future under any
statute, the Certificate of Incorporation, bylaw, agreement, vote of
shareholders or disinterested directors or otherwise.
5.7. INSURANCE. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the law.
5.8. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses,
to any employee or agent of the Corporation to the fullest extent of the
provisions of this Section with respect to the indemnification and advancement
of expenses of directors and officers of the Corporation, or to such lesser
extent as may be determined by the Board of Directors.
5.9. NOTICE BY INDEMNITEE AND DEFENSE OF CLAIM. The indemnitee must
promptly notify the Corporation in writing upon being served with any summons,
citation, subpoena, complaint, indictment, information or other document
relating to any matter, whether civil, criminal, administrative or
investigative. The omission so to notify the Corporation will not relieve it
from any liability which it may have to the indemnitee if such omission does not
prejudice the Corporation's rights. If such omission does prejudice the
Corporation's rights, the Corporation will be relieved from liability only to
the extent of such prejudice; nor will such omission relieve the Corporation
from any liability which is may have to the indemnitee otherwise than under
these Sections. With respect to any actions, lawsuits or proceedings as to which
the indemnitee notifies the Corporation of the commencement thereof:
12
<PAGE>
(a) The Corporation will be entitled to participate therein at its own
expense; and
(b) The Corporation will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to the indemnitee; provided, however, that
the Corporation will not be entitled to assume the defense of any proceeding
(and this Section 5.9 will be inapplicable to such proceeding) if the indemnitee
will have concluded reasonably that there may be a conflict of interest between
the Corporation and the indemnitee with respect to such action, lawsuit or
proceeding. After notice from the Corporation to the indemnitee of its election
to assume the defense thereof, the Corporation will not be liable to the
indemnitee under this Section for any expenses subsequently incurred by the
indemnitee in connection with the defense thereof, other than reasonable costs
of investigation or as otherwise provided below. The indemnitee will have the
right to employ its own counsel in such proceeding but the fees and expenses of
such counsel incurred after notice from the Corporation of its assumption of the
defense thereof will be at the expense of the indemnitee unless:
(i) The employment of counsel by the indemnitee has been
authorized by the Corporation in writing; or
(ii) The Corporation has not employed counsel to assume the
defense in such proceeding within a reasonable period of time after giving
the indemnitee notice of its assumption of the defense or has not assumed
such defense and be acting in connection therewith with reasonable
diligence;
in each of which cases the fees and expenses of such counsel shall be at the
expense of the Corporation.
(c) The Corporation will not settle any proceeding in any manner which
would impose any penalty or limitation on the indemnitee without the
indemnitee's written consent; provided, however, that the indemnitee will not
unreasonably withhold his consent to any proposed settlement.
6. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.1. CERTIFICATES FOR SHARES. Unless otherwise provided by a resolution of
the Board of Directors, the shares of the Corporation will be represented by a
certificate. The certificates of stock of the Corporation will be numbered and
entered in the books of the Corporation as they are issued. They will exhibit
the holder's name and number of shares and will be signed by or in the name of
the Corporation by (a) the Chairman of the Board of Directors, the President or
any Vice President and (b) the Treasurer, any Assistant Treasurer, the Secretary
or any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimile. In case any officer of the Corporation, transfer agent or registrar
who has signed, or whose facsimile signature has been placed upon such
certificate, will have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may nevertheless be issued
by the Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issuance.
13
<PAGE>
6.2. CLASSES OF STOCK.
(a) If the Corporation is authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualification, limitations, or
restrictions of such preferences or rights will be set forth in full or
summarized on the face or back of the certificate that the Corporation issues to
represent such class or series of stock; provided, that, in lieu of the
foregoing requirements, there may be set forth on the face or back of the
certificate that the Corporation will issue to represent such class or series of
stock, a statement that the Corporation will furnish without charge to each
shareholder who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
or rights.
(b) Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation will send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law or a statement that the Corporation
will furnish without charge to each shareholder who so requests the powers,
designations, preferences and relative participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights.
6.3. TRANSFER. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignation or authority to transfer, the
Corporation will issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. Upon receipt of
proper transfer instructions from the registered owner of uncertificated shares,
such uncertificated shares will be canceled, issuance of new equivalent
uncertificated shares or certificated shares will be made to the person entitled
thereto and the transaction will be recorded upon the books of the Corporation.
6.4. RECORD OWNER. The Corporation is entitled to treat the holder of
record of any share or shares of stock as the holder in fact thereof, and,
accordingly, will not be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person, whether or not it will
have express or other notice thereof, save as expressly provided by the laws of
the State of Delaware.
6.5. LOST CERTIFICATES. The Board of Directors may direct a new certificate
or certificates or uncertificated shares to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit, in form
and substance acceptable to the Corporation, of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing such
issuance of a new certificate or certificates or uncertificated shares, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as the Board of Directors will require and to give the
Corporation a bond in such sum as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
14
<PAGE>
7. MISCELLANEOUS
7.1. RECORD DATE.
(a) In order that the Corporation may determine the shareholders
entitled to notice of or to vote at any meeting of the shareholders 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, in advance, a record date,
which will not be more than 70 nor less than 10 days prior to the date of such
meeting nor more than 70 days prior to any other action. If not fixed by the
Board of Directors, the record date will be determined as provided by law.
(b) A determination of shareholders of record entitled to notice of or
to vote at a meeting of the shareholders will apply to any adjournments of the
meeting, unless the Board of Directors fixes a new record date for the adjourned
meeting.
(c) Holders of stock on the record date fixed by the Board of
Directors are entitled to notice and to vote or to receive the dividend,
distribution or allotment of rights or to exercise the rights, as the case may
be, notwithstanding any transfer of the shares on the books of the Corporation
after the record date, except as otherwise provided by agreement or by law, the
Certificate of Incorporation or these Bylaws.
7.2. EXECUTION OF INSTRUMENTS. The Board of Directors may, in its
discretion, determine the method and designate the signatory officer or
officers, or other persons, to execute any corporate instrument or document or
to sign the corporate name without limitation, except where otherwise provided
by law, the Certificate of Incorporation or these Bylaws. Such designation may
be general or confined to specific instances.
7.3. VOTING OF SECURITIES OWNED BY THE CORPORATION. All stock and other
securities of other corporations held by the Corporation must be voted, and all
proxies with respect thereto must be executed, by the person so authorized by
resolution of the Board of Directors, or, in the absence of such authorization,
by the President.
7.4. CORPORATE SEAL. A corporate seal will not be requisite to the validity
of any instrument executed by or on behalf of the Corporation. If a corporate
seal is used, the same will be at the pleasure of the officer affixing seal
either (a) a circle having on the circumference thereof the words "SITEK,
INCORPORATED" and in the center "Incorporated - 1998, Delaware," or (b) a seal
containing the words "Corporate Seal" in the center of it.
7.5. CONSTRUCTION AND DEFINITIONS. Unless the context requires otherwise,
the general provisions, rules of construction and definitions in the Delaware
General Corporation Law and the Certificate of Incorporation will govern the
construction of these Bylaws.
7.6. AMENDMENTS. These Bylaws may be altered, amended or repealed by a
majority vote of the Board of Directors or the shareholders.
15
