Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
NESS TECHNOLOGIES, INC.(1)
ARTICLE ONE
STOCKHOLDERS
SECTION 1.1 ANNUAL MEETINGS. An annual meeting of stockholders to elect
directors and transact such other business as may properly be presented to the
meeting shall be held on such date and at such place as the Board of Directors
may from time to time fix, and if that day shall be a legal holiday in the
jurisdiction in which the meeting is to be held, then on the next day not a
legal holiday or as soon thereafter as may be practical as determined by the
Board of Directors.
SECTION 1.2 SPECIAL MEETINGS. A special meeting of stockholders may be
called at any time by the Chairman of the Board, the Chief Executive Officer, by
the Board of Directors pursuant to a resolution adopted by a majority of the
Whole Board (as defined below) or by the Secretary at the direction of a
majority of the voting power of all the then outstanding shares of the voting
stock, voting together as a single class upon receipt of a written request to do
so specifying the matter or matters, appropriate for action at such a meeting.
Any such meeting shall be held at such time and at such place, within or without
the State of Delaware, as shall be determined by the body or person calling such
meeting and as shall be stated in the notice of such meeting. The Whole Board
shall mean the total number of directors which the Corporation would have if
there were no vacancies.
SECTION 1.3 NOTICE OF MEETING. For each meeting of stockholders written
notice shall be given stating the place, date and hour and, in the case of a
special meeting, the purpose or purposes for which the meeting is called and, if
the list of stockholders required by Section 1.9 is not to be at such place at
least 10 days prior to the meeting, the place where such list will be. Except as
otherwise provided by Delaware law, written notice of any meeting shall be given
not less than 10 or more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, notice shall be deemed
to be given when deposited in United States mail, postage prepaid, directed to
stockholder at his address as it appears on the records of the Corporation.
SECTION 1.4 QUORUM. Except as otherwise required by Delaware law or the
Certificate of Incorporation, the holders of record of a majority of the shares
of stock entitled to be voted present in person or represented by proxy at a
meeting shall constitute a quorum for the transaction of business at the
meeting, but in the absence of a quorum the holders of record present or
represented by proxy at such meeting may vote to adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum
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(1) As of November 2, 2007
is obtained. At any such adjourned session of the meeting at which there shall
be present or represented the holders of record of the requisite number of
shares, any business may be transacted that might have been transacted at the
meeting as originally called.
SECTION 1.5 CHAIRMAN AND SECRETARY AT MEETING. At each meeting of
stockholders the Chairman, or in his absence the President, or in the absence of
both the Chairman and the President, then a person designated by the Board of
Directors, shall preside as chairman of the meeting; if no person is so
designated, then the meeting shall choose a chairman by plurality vote. The
Secretary, or in his absence a person designated by the chairman of the meeting,
shall act as secretary of the meeting.
SECTION 1.6 VOTING; PROXIES. Except as otherwise provided by Delaware law
or the Certificate of Incorporation, and subject to the provisions of Section
1.10:
(a) Each stockholder shall at every meeting of the stockholders be
entitled to one vote for each share of capital stock held by him.
(b) Each stockholder entitled to vote at a meeting of stockholders
or to express consent or dissent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy,
but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
(c) Directors shall be elected by a plurality vote.
(d) Each matter, other than election of directors, properly
presented to any meeting shall be decided by a majority of the votes cast
on the matter.
(e) Election of directors and the vote on any other matter presented
to a meeting shall be by written ballot only if so ordered by the chairman
of the meeting or if so requested by any stockholder present or
represented by proxy at the meeting entitled to vote in such election or
on such matter, as the case may be.
SECTION 1.7 ADJOURNED MEETINGS. A meeting of stockholders may be adjourned
to another time or place as provided in Section 1.4 or 1.6(d). Unless the Board
of Directors fixes a new record date, stockholders of record for an adjourned
meeting shall be as originally determined for the meeting from which the
adjournment was taken. 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 any business may be transacted that might have
been transacted at the meeting as originally called.
SECTION 1.8 CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Except as may be
otherwise provided in the Certificate of Incorporation of the Corporation, any
action that may be taken at any annual or special meeting of stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
all of the outstanding stock that would have been entitled to vote thereon at a
meeting of stockholders.
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SECTION 1.9 LIST OF STOCKHOLDERS ENTITLED TO VOTE. At least 10 days before
every meeting of stockholders a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder, shall be prepared and shall be open to the examination of any
stockholder for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 days prior to the meeting, at a place within
the city where the meeting is to be held. Such list shall be produced and kept
at the time and place of the meeting during the whole time thereof and may be
inspected by any stockholder who is present.
SECTION 1.10 FIXING OF RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, 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 shall not be more than 60 or less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action. If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day 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; the record date for determining stockholders
entitled to express consent to corporate action in writing without a meeting,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed; and the record date 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.
SECTION 1.11 NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF STOCKHOLDERS.
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) pursuant to
the Corporation's notice of meeting, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who was a stockholder of
record at the time of giving of notice provided for in this Section 1.11, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 1.11.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 1.11, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
90th day nor earlier than the close of business on the 120th day prior to the
first anniversary of the preceding year's annual meeting; provided, however, in
the event that the date of the annual meeting is more than 30 days before or
more than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the 120th
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day prior to such annual meeting and not later than the close of business on the
later of the 90th day prior to such annual meeting or the 10th day following the
day on which public announcement of the date of such meeting is first made by
the Corporation. In no event shall the public announcement of an adjournment of
an annual meeting commence a new time period for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth (a) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and Rule
14a-11 thereunder (including such person's written consent to being named in the
proxy statement as a nominee and to serving as a director if elected); (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner, and (ii) the class and number
of shares of the Corporation that are owned beneficially and of record by such
stockholder and such beneficial owner.
Notwithstanding anything in the second sentence of paragraph (A)(2) of
this Section 1.11 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least 70
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 1.11 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this bylaw, who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 1.11. In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
who shall be entitled to vote at the meeting may nominate a person or persons
(as the case may be), for election to such position(s) as specified in the
Corporation's notice of meeting, if the stockholder's notice required by
paragraph (A)(2) of this Section 1.11 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the close of
business on the 120th day prior to such special meeting and not later than the
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close of business on the later of the 90th day prior to such special meeting or
the 10th day following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting commence a new time period
for the giving of a stockholder's notice as described above.
(C) GENERAL.
(1) Only such persons who are nominated in accordance with the
procedures set forth in this Section 1.11 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1.11. Except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this Section1.11 and, if any
proposed nomination or business is not in compliance with this Section 1.11, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 1.11, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 1.11, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this Section 1.11. Nothing in this Section 1.11 shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of preferred stock to elect directors under
specified circumstances.
ARTICLE TWO
DIRECTORS
SECTION 2.1 NUMBER; TERM OF OFFICE; QUALIFICATIONS; VACANCIES. The number
of directors that shall constitute the whole Board of Directors (the "Whole
Board") shall be fixed from time to time as determined by action of the Board of
Directors taken by the affirmative vote of a majority of the whole Board of
Directors. Directors shall be elected at the annual meeting of stockholders to
hold office, subject to Sections 2.2 and 2.3, until the next annual meeting of
stockholders and until their respective successors are elected and qualified.
Vacancies and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by the sole remaining director, and
the directors so chosen shall hold office, subject to Sections 2.2 and 2.3,
until the next annual meeting of stockholders and until their respective
successors are elected and qualified.
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SECTION 2.2 RESIGNATION. Any director of the Corporation may resign at any
time by giving written notice of such resignation to the Board of Directors, the
President or the Secretary of the Corporation. Any such resignation shall take
effect at the time specified therein or, if no time be specified, upon receipt
thereof by the Board of Directors or one of the above-named officers; and,
unless specified therein, the acceptance of such resignation shall not be
necessary to make it effective. 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 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 in the filling of other vacancies.
SECTION 2.3 REMOVAL. Except for the directors elected pursuant to and in
accordance with the terms of a Certificate of Designations, Number, Voting
Powers, Preferences and Rights of Preferred Stock, whose removal is governed
thereby, any one or more directors may be removed, with or without cause, by the
vote or written consent of the holders of a majority of the shares entitled to
vote at an election of directors.
SECTION 2.4 REGULAR AND ANNUAL MEETINGS; NOTICE. Regular meetings of the
Board of Directors shall be held at such time and at such place, within or
without the State of Delaware, as the Board of Directors may from time to time
prescribe. No notice need be given of any regular meeting, and a notice, if
given, need not specify the purposes thereof. A meeting of the Board of
Directors may be held without notice immediately after an annual meeting of
stockholders at the same place as that at which such meeting was held.
SECTION 2.5 SPECIAL MEETINGS; NOTICE. A special meeting of the Board of
Directors may be called at any time by the Board of Directors, its Chairman, the
Executive Committee, the President or any person acting in the place of the
President and shall be called by any one of them or by the Secretary upon
receipt of a written request to do so specifying the matter or matters,
appropriate for action at such a meeting, proposed to be presented at the
meeting and signed by at least two directors. Any such meeting shall be held at
such time and at such place, within or without the State of Delaware, as shall
be determined by the body or person calling such meeting. Notice of such meeting
stating the time and place and principal purpose or purposes thereof shall be
given (a) by deposit of the notice in the United States mail, first class,
postage prepaid, at least two days before the day fixed for the meeting
addressed to each director at his address as it appears on the Corporation's
records or at such other address as the director may have furnished the
Corporation for that purpose, or (b) by delivery of the notice similarly
addressed for dispatch by electronic transmission, telegraph, cable or radio or
by delivery of notice by telephone or in person, in each case at least 24 hours
before the time fixed for the meeting.
SECTION 2.6 CHAIRMAN OF THE BOARD; PRESIDING OFFICER AND SECRETARY AT
MEETINGS. The Board of Directors may elect one of its members to serve at its
pleasure as Chairman of the Board. Each meeting of the Board of Directors shall
be presided over by the Chairman of the Board or in his absence by the
President, if a director, or if neither is present by such member of the Board
of Directors as shall be chosen at the meeting. The Secretary, or in his absence
an Assistant Secretary, shall act as secretary of the meeting, or if no such
officer is present, a secretary of the meeting shall be designated by the person
presiding over the meeting.
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SECTION 2.7 QUORUM. A majority of the Whole Board shall constitute a
quorum for the transaction of business, but in the absence of a quorum a
majority of those present (or if only one be present, then that one) may adjourn
the meeting, without notice other than announcement at the meeting, until such
time as a quorum is present. Except as otherwise required by the Certificate of
Incorporation or the By-Laws, the vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors.
SECTION 2.8 MEETING BY TELEPHONE. Members of the Board of Directors or any
committee thereof may participate in meetings of the Board of Directors or of
such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and such participation shall constitute presence in person at such
meeting.
SECTION 2.9 ACTION WITHOUT MEETING. Unless otherwise restricted by the
Certificate of Incorporation, any action required or permitted to be taken at
any meeting of the Board of Directors or of any committee thereof may be taken
without a meeting if all members of the Board of Directors or of such committee,
as the case may be, consent thereto in writing and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or of such
committee.
SECTION 2.10 EXECUTIVE AND OTHER COMMITTEES. (A) The Board of Directors
may, by resolution passed by a majority of the Whole Board, designate an
Executive Committee and one or more other committees, each such committee to
consist of two or more directors (or, in the case of a special-purpose
committee, one or more directors of the Corporation) as the Board of Directors
may from time to time determine. Any such committee, to the extent provided in
such resolution or resolutions or in these By-Laws and not inconsistent with
Section 141 of the Delaware General Corporation Law, as amended (the "DGCL"),
shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation,
including the power to authorize the seal of the Corporation to be affixed to
all papers that may require it; and unless the resolution or resolutions shall
expressly so provide, no such committee shall have the power or authority to
declare a dividend or to authorize the issuance of stock. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such
committee member or members constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in place of any such
absent or disqualified member. Each such committee other than the Executive
Committee shall have such name as may be determined from time to time by the
Board of Directors.
(B) Unless the Board of Directors otherwise provides, each committee
designated by the Board of Directors may adopt, amend and repeal rules for the
conduct of its business. In the absence of a provision by the Board of Directors
or a provision in the rules of such committee to the contrary, a majority of the
entire authorized number of members of such committee shall constitute a quorum
for the transaction of business, the vote of a majority of the members present
at a meeting at the time of such vote if a quorum is then present shall be the
act of such committee, and in other respects each committee shall conduct its
business in the same manner as the Board of Directors conducts its business
pursuant to Article Two of these By-Laws.
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SECTION 2.11 COMPENSATION. No director shall receive any stated salary for
his services as a director or as a member of a committee but shall receive such
sum, if any, as may from time to time be fixed by the action of Board of
Directors.
ARTICLE THREE
OFFICERS
SECTION 3.1 ELECTION; QUALIFICATION. The officers of the Corporation shall
be a Chairman of the Board, a President, one or more Vice Presidents, a Chief
Financial Officer, a Secretary and a Treasurer, each of whom shall be selected
by the Board of Directors. The Board of Directors may elect a Controller, one or
more Assistant Chief Financial Officers, Assistant Secretaries, Assistant
Treasurers, Assistant Controllers and such other officers as it may from time to
time determine. Any two or more offices may be held by the same person.
SECTION 3.2 TERM OF OFFICE. Each officer shall hold office from the time
of his election and qualification to the time at which his successor is elected
and qualified, unless he shall die or resign or shall be removed pursuant to
Section 3.4 at any time sooner.
SECTION 3.3 RESIGNATION. Any officer of the Corporation may resign at any
time by giving written notice of such resignation to the Chairman of the Board,
the President or the Secretary of the Corporation. Any such resignation shall
take effect at the time specified therein or, if no time be specified, upon
receipt thereof by one of the above-named officers; and, unless specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 3.4 REMOVAL. Any officer may be removed at any time, with or
without cause, by the vote of a majority of the Whole Board.
SECTION 3.5 VACANCIES. Any vacancy however caused in any office of the
Corporation shall be filled by the Board of Directors.
SECTION 3.6 COMPENSATION. Unless otherwise provided by resolution passed
by a majority of the Whole Board, and subject to the requirements of any
national securities exchange or automated quotation system on which the stock of
the Corporation is listed, the salaries of all officers elected by the Board of
Directors shall be fixed by the Board of Directors.
SECTION 3.7 CHAIRMAN OF THE BOARD. The Chairman of the Board shall be the
chairman of all meetings of the Board of Directors and, if so designated by the
Board of Directors, shall be the Chief Executive Officer of the Corporation and
shall have general charge of the business and affairs of the Corporation,
subject however to the right of the Board of Directors to confer specified
powers on officers and subject to the control of the Board of Directors and the
Executive Committee, if any. The Chief Executive Officer shall keep the Board of
Directors appropriately informed regarding the business and affairs of the
Corporation.
SECTION 3.8 PRESIDENT. The President, if so designated by the Board of
Directors, shall be the Chief Executive Officer of the Corporation and shall
have general charge of the business and affairs of the Corporation, subject
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however to the right of the Board of Directors to confer specified powers on
officers and subject to the control of the Board of Directors and the Executive
Committee, if any. If not designated by the Board of Directors as Chief
Executive Officer, the President shall be the Chief Operating Officer of the
Corporation and shall have general charge of the day-to-day operations of the
business and affairs of the Corporation, subject however to the right of the
Board of Directors to confer specified powers on officers and subject to the
control of the Board of Directors and the Executive Committee, if any. The Chief
Executive Officer shall keep the Board of Directors appropriately informed
regarding the business and affairs of the Corporation.
SECTION 3.9 EXECUTIVE AND SENIOR VICE PRESIDENTS. One or more Executive or
Senior Vice Presidents shall, subject to the control of the Chief Executive
Officer or the President, have lead accountability for components or functions
of the Corporation as and to the extent designated by the Chief Executive
Officer or the President. Each Executive or Senior Vice President shall keep the
Chief Executive Officer or the President to whom he or she reports appropriately
informed on the business and affairs of the designated components or functions
of the Corporation.
SECTION 3.10 VICE PRESIDENTS. Each Vice President shall have such powers
and duties as generally pertain to the office of Vice President and as the Board
of Directors or the Chief Executive Officer may from time to time prescribe.
During the absence of the President or his inability to act, the Vice President,
or if there shall be more than one Vice President, then that one designated by
the Board of Directors, shall exercise the powers and shall perform the duties
of the President, subject to the direction of the Board of Directors and the
Executive Committee, if any.
SECTION 3.11 SECRETARY. The Secretary shall keep the minutes of all
meetings of stockholders and of the Board of Directors. He shall be custodian of
the corporate seal and shall affix it or cause it to be affixed to such
instruments as require such seal and attest the same and shall exercise the
powers and shall perform the duties incident to the office of Secretary, subject
to the direction of the Board of Directors and the Executive Committee, if any.
SECTION 3.12 TREASUER. The Treasurer shall have charge of and be
responsible for the receipt, disbursement and safekeeping of all funds and
securities of the Corporation. The Treasurer shall deposit all such funds in the
name of the Corporation in such banks, trust companies or other depositories as
shall be selected in accordance with the provisions of these bylaws. From time
to time and whenever requested to do so, the Treasurer shall render statements
of the condition of the finances of the Corporation to the Board of Directors.
The Treasurer shall perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her.
SECTION 3.13 OTHER OFFICERS. Each other officer of the Corporation shall
exercise the powers and shall perform the duties incident to his office, subject
to the direction of the Board of Directors and the Executive Committee, if any.
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ARTICLE FOUR
CAPITAL STOCK
SECTION 4.1 STOCK CERTIFICATES. Shares of capital stock of the Corporation
may be certificated or uncertificated. If certificated, each certificate shall
be signed by or in the name of the Corporation by the President or a Vice
President and by the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary. Any or all the signatures appearing on such certificate or
certificates may be a facsimile. If any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issue.
There shall be entered on the books of the Corporation the number of
uncertificated shares (and class or series, if any) issued, each stock
certificate issued and the number (and class or series, if any) of shares
represented by such stock certificate, the name and address of the person to
whom such certificate or uncertificated shares was issued and the date of
issuance thereof.
SECTION 4.2 TRANSFER OF STOCK. Shares of stock shall be transferable on
the books of the Corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe. Upon
such transfer, the old certificates, if such shares are certificated, shall be
surrendered, along with such evidence of the authenticity of such transfer,
authorization and other matters as the Corporation or its agents may reasonably
require, to the Corporation by the delivery thereof to the person in charge of
the stock and transfer books, or to such other person as the directors may
designate, by whom they shall be canceled, and new certificates or evidence of
the issuance of uncertificated shares to the person entitled thereto shall
thereupon be issued. Upon the receipt of proper transfer instructions from the
registered owner of uncertificated shares, such uncertificated shares shall be
canceled, issuance of new equivalent uncertificated shares or certificated
shares shall be made to the person entitled thereto and the transaction shall be
recorded upon the books of the Corporation.
SECTION 4.3 HOLDERS OF RECORD. Prior to due presentment for registration
of transfer the Corporation may treat the holder of record of a share of its
stock as the complete owner thereof exclusively entitled to vote, to receive
notifications and otherwise entitled to all rights and powers of a complete
owner thereof, notwithstanding notice to the contrary.
SECTION 4.4 LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES. A new
certificate of stock or uncertificated shares in place of any certificate or
certificates previously issued by the Corporation may be issued in the place of
any certificate theretofore issued by the Corporation, alleged to have been
lost, stolen or destroyed, if the owner of the lost, stolen or destroyed
certificate, or his legal representatives (i) requests replacement, before the
Corporation has notice that the stock certificate or uncertificated shares have
been acquired by a bona fide purchaser; (ii) files with the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate, or the issuance of any such new certificate or uncertificated
shares; and (iii) satisfies such other terms and conditions as the Board of
Directors may from time to time prescribe.
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ARTICLE FIVE
MISCELLANEOUS
SECTION 5.1 INDEMNITY.
(a) Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit, or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she or a person of whom he or she is the legal
representative 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 or employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall 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 said law permitted the Corporation to provide prior
to such amendment) and in the manner provided in the Certificate of
Incorporation of the Corporation and as otherwise permitted by the DGCL.
SECTION 5.2 WAIVER OF NOTICE. Whenever notice is required by the
Certificate of Incorporation, the By-Laws or any provision of the DGCL, a
written waiver thereof, signed by the person entitled to notice, whether before
or after the time required for such notice, shall be deemed equivalent to
notice. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any
business because the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors or members of a committee of directors need be
specified in any written waiver or notice.
SECTION 5.3 FISCAL YEAR. The fiscal year of the Corporation shall start on
such date as the Board of Directors shall from time to time prescribe.
SECTION 5.4 CORPORATE SEAL. The corporate seal shall be in such form as
the Board of Directors may from time to time prescribe, and the same may be used
by causing it or a facsimile thereof to be impressed or affixed or in any other
manner reproduced.
ARTICLE SIX
AMENDMENT OF BY-LAWS
SECTION 6.1 AMENDMENT. The By-Laws may be altered, amended or repealed by
the stockholders or by the Board of Directors by a majority vote.
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