BY-LAWS
OF
COMPUTER ASSOCIATES INTERNATIONAL, INC.
(As Amended, Effective as of January 19, 1999)
The registered office of the corporation in the State of Delaware
shall be located at 1013 Centre Road, Wilmington, Delaware, New
Castle County, 19805, and the resident agent of the corporation
thereat shall be United States Corporation Company. The
Corporation may have such other offices, either within or without
the State of Delaware, as the Board of Directors may designate or
as the business of the corporation may require from time to time.
ARTICLE II. STOCKHOLDERS
Section 1. Annual Meeting. An annual meeting of stockholders
shall be held for the election of directors at such date, time and
place, either within or without the State of Delaware, as may be
designated by resolution of the Board of Directors from time to
time. Any other proper business may be transacted at the annual
meeting. If the day fixed for the annual meeting shall be a legal
holiday, such meeting shall be held on the next succeeding
business day. If the election of Directors shall not be held on
the day designated herein for any annual meeting of the
stockholders, or at any adjournment thereof, the Board of
Directors shall cause the election to be held at a special meeting
of the stockholders as soon thereafter as conveniently may be.
Section 2. Special Meeting. Special meetings of the stockholders,
for any purpose or purposes, unless otherwise prescribed by
statute, may be called only by the President or by the Board of
Directors.
Section 3. Place of Meeting. The Board of Directors may designate
any place within or without the State of Delaware as the place of
meeting for any annual meeting or special meeting. If no such
designation is made, the place of meeting shall be as specified in
the call of the meeting and if not so specified, then at the
registered office of the corporation in the State of Delaware.
Section 4. Notice of Meeting. Written or printed notice stating
the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is
called, shall be delivered, unless otherwise provided in the DGCL,
the certificate of incorporation of the Corporation, or these
bylaws, not less than 10 nor more than 60 days before the date of
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the meeting, either personally or by mail, by or at the direction
of the President, or the Secretary, or of the officer or persons
calling the meeting, to each stockholder of record entitled to
vote at such meeting. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail, addressed
to the stockholder at his address as it appears on the stock
transfer books of the corporation, with postage thereon prepaid.
When a meeting is adjourned to another time or place, notice need
not be given of the adjourned meeting if the time and place
thereof are announced at the meeting at which the adjournment is
taken, unless the adjournment is for more than 30 days or unless,
after adjournment, a new record date is fixed for the adjourned
meeting, in either of which cases notice of the adjourned meeting
will be given to each stockholder of record entitled to vote at
the meeting.
Section 5. 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 entitled 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 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 record date: (1) in
the case of determination of stockholders entitled to vote at any
meeting of stockholders or adjournment thereof, shall, unless
otherwise required by law, not be more than 60 nor less than 10
days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to
corporate action in writing without a meeting, shall not be more
than 10 days from the date upon which the resolution fixing the
record date is adopted by the Board of Directors; and (3) in the
case of any other action, shall not be more than 60 days prior to
such other action. If no record date is fixed: (1) 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; (2)
the record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting when no
prior action of the Board of Directors is required by law, 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 in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at
the close of business on the day on which the Board of Directors
adopts the resolution taking such prior action; and (3) 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. 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. Any stockholder of
record seeking to have the stockholders authorize or take
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corporate action by written consent shall, by written notice to
the secretary, request the board of directors to fix a record
date. The board of directors shall promptly, but in all events
within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date. If
no record date has been fixed by the board of directors within ten
(10) days of the date on which such a request is received, the
record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall the first date
on which a signed written consent setting forth the actin taken or
proposed to be taken is delivered to the corporation as provided
in Section 228(a) of the Delaware General Corporation Law.
Section 6. Voting Lists. The officer or agent having charge of
the stock ledger of the corporation shall make, at least 10 days
before each meeting of the stockholders, a complete list of the
stockholders entitled to vote at such meeting, or any adjournment
thereof, arranged in alphabetical order with the address of and
the number of shares held by each, which list, for a period of 10
days prior to such meeting, shall be kept on file at the place
where the meeting is to be held or at a place specified in the
notice of the meeting in the city where the meeting is to be held.
Such list shall be subject to inspection by any stockholder at any
time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any stockholder during the
whole time of the meeting. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine such
list or to vote at any meeting of stockholders.
Section 7. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, present in person or represented by
proxy, shall constitute a quorum at a meeting of stockholders. If
less than a majority of the outstanding shares are represented at
a meeting, [the chairman of the meeting] may adjourn the meeting
from time to time without further notice. At such adjourned
meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at
the meeting as originally called. The stockholders present at a
duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum. At all meetings of stockholders for
the election of directors, a plurality of the votes cast shall be
sufficient to elect. Unless otherwise provided by law,
the certificate of incorporation or these bylaws, in all matters
other than the election of directors, the affirmative vote of the
majority of shares present in person or represented by proxy at
the meeting and entitled to vote on the subject matter shall be
the act of the stockholders.
Section 8. Proxies. At all meetings of stockholders, a
stockholder may vote by proxy (i) executed in writing by the
stockholder or by his duly authorized attorney in fact; or (ii) by
transmitting or authorizing the transmission of a telegram,
cablegram or other means of electronic transmission to the person
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who will be the holder of the proxy or an agent duly
authorized by the person who will be the holder of the proxy to
receive such transmission, provided that any such telegram,
cablegram or other means of electronic transmission must either
set forth or be submitted with information from which it can be
determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder; or (iii) as
otherwise permitted pursuant to Section 212 of the Delaware
General Corporation Law. 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.
Section 9. Voting of Shares. Unless otherwise provided in the
certificate of incorporation of the Corporation, each outstanding
share entitled to vote shall be entitled to one vote upon each
matter submitted to a vote at a meeting of stockholders, as set
forth in the Certificate of Incorporation. Shares standing in the
name of another corporation may be voted by such officer,
agent or proxy as the by-laws of such corporation may prescribe,
or, in the absence of such provision, as the Board of Directors of
such corporation may determine. Shares of its own capital stock
belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of
directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote
nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of any corporation to vote
stock, including but not limited to its own stock, held by it
in a fiduciary capacity.
Section 10. Consent of Stockholders in Lieu of Meeting.
(a) Any action required to be taken at a meeting of the
stockholders, or any other action which may be taken at a meeting
of the stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing
setting forth the action so taken shall be signed by the holders
of outstanding stock having not less than 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 thereon were
present and voted. The Corporation shall give prompt notice of
the taking of corporate action without a meeting by less than
unanimous written consent to stockholders who have not consented
in writing and who, if the acion had been taken at a meeting,
would have been entitled to notice of the meeting if
the record date for such meeting had been the date that written
consents signed by a sufficient number of stockholders to take the
action were delivered to the Corporation in the manner provided in
Section 228(c) of the Delaware General Corporation Law.
(b) Inspectors of Election; Procedures for Counting Consents.
Within three (3) business days after receipt of the earliest dated
consent delivered to the Corporation in the manner provided in
Section 228(c) of the Delaware General Corporation Law or the
determination by the Board of Directors of the Corporation that
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the Corporation should seek corporate action by written consent,
as the case may be, the Secretary shall engage nationally
recognized independent inspectors of elections for the purpose of
performing a ministerial review of the validity of the consents
and revocations. The cost of retaining inspectors of election
shall he borne by the Corporation. No action by written consent
without a meeting shall be effective until such date as the
inspectors certify to the Corporation that the consents delivered
to the Corporation in accordance with this section represent at
least 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 thereon were present and votes.
Consents and revocations shall be delivered to the inspectors upon
receipt by the Corporation, the soliciting stockholders or their
proxy solicitors or other designated agents. As soon as consents
and revocations are received, the inspectors shall review the
consents and revocations and shall maintain a count of the number
of valid and unrevoked consents. The inspectors shall keep such
count confidential and shall not reveal the count to the
Corporation, the soliciting stockholder or their representatives
or any other entity. As soon as practicable after the earlier if
(i) sixty (60) days after the date of the earliest dated consent
delivered to the Corporation in the manner provided in Section
228(c) of the Delaware General Corporation law or (ii) a written
request therefor by the Corporation or the soliciting stockholders
(whichever is soliciting consents), notice of which request shall
be given to the party opposing the solicitation of consents, if
any, which request shall state that the Corporation or soliciting
stockholders, as the case may be, have a good faith belief that
the requisite number of valid and unrevoked consents to authorize
or take the action specified in the consents has been received in
accordance with these Bylaws, the inspectors shall issue a
preliminary report to the Corporation and the soliciting
stockholders stating: (i) the number of valid consents: (ii) the
number of valid revocations; (iii) the number of valid and
unrevoked consents: (iv) the number of invalid consents; (v) the
number of invalid revocations; (vi) whether, based on their
preliminary count, the requisite number of valid and unrevoked
consents has been obtained to authorize or take the action
specified in the consents.
Unless the Corporation and the soliciting stockholders shall agree
to a shorter or longer period, the Corporation and the soliciting
stockholders shall have 48 hours to review the consents and
revocations and to advise the inspectors and the opposing party in
writing as to whether they intend to challenge the preliminary
report of the inspectors. If no written notice of in intention to
challenge the preliminary report is received within 48 hours after
the inspectors issuance of the preliminary report, the inspectors
shall issue to the Corporation and the soliciting stockholders
their final report containing the information from the inspectors
determination with respect to whether the requisite number of
valid and unrevoked consents was obtained to authorize and take
the action specified in the consents. If the Corporation or the
soliciting stockholders issue written notice of an intention to
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challenge the inspectors preliminary report within 48 hours after
the issuance of that report, a challenge session shall be
scheduled by the inspectors as promptly as practicable. Following
completion of the challenge session, the inspectors shall
as promptly as practicable issue their final report to the
soliciting stockholders and the Corporation, which report shall
contain the information included in the preliminary report, plus
all changes in the vote totals as a result of the challenge and a
certification of whether the requisite number of valid and
unrevoked consents was obtained to authorize or take the action
specified in the consents. A copy of the final report of the
inspectors shall be included in the book in which the proceedings
of meetings of stockholders are recorded.
Section 11. Nominations of Directors.
(a) Only persons who are nominated in accordance with the
procedures set forth in these by-laws shall be eligible to serve
as Directors. Nominations of persons for election to the Board of
Directors of the corporation may be made at a meeting of
stockholders (i) by or at the direction of the Board of Directors
or (ii) 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 for the election of Directors
at the meeting and who complies with the notice procedures set forth in this by-
law.
(b) Nominations by stockholders shall be made pursuant to
timely notice in writing to the Secretary of the corporation. To
be timely, a stockholders notice shall be delivered to or mailed
and received at the principal executive offices of the corporation
(i) in the case of an annual meeting, not less than 60 days nor
more than 90 days prior to the first anniversary of the
preceding years annual meeting; provided, however, that in the
event that the date of the annual meeting is changed by more than
30 days from such anniversary date, notice by the stockholder to
be timely must be so received not later than the close of business
on the 10th day following the earlier of the day on which notice
of the date of the meeting was mailed or public disclosure
was made, and (ii) in the case of a special meeting at which
Directors are to be elected, not later than the close of business
on the 10th day following the earlier of the day on which notice
of the date of the meeting was mailed or public disclosure was
made. Such stockholders notice shall set forth (1) 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, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such persons written consent to
being named in the proxy statement as a nominee and to serving as
a Director if elected); (II) as to the stockholder giving the
notice (A) the name and address, as they appear on the
corporations books, of such stockholder and (B) the class and
number of shares of the corporation which are beneficially owned
by such stockholder and also which are owned of record by
such stockholder; and (III) as to the beneficial owner, if any, on
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whose behalf the nomination is made, (A) the name and address of
such person and (B) the class and number of shares of the
corporation which are beneficially owned by such person. At the
request of the Board of Directors, any person nominated
by the Board of Directors for election as a Director shall furnish
the Secretary of the corporation that information required to be
set forth in the stockholders notice of nomination which pertains
to the nominee.
(c) No person shall be eligible to serve as a Director of the
corporation unless nominated in accordance with the procedures set
forth in this bylaw. The Chairman of the meeting shall, if the
facts warrant, determine and declare to the meeting that a
nomination was not made in accordance with the procedures
prescribed by these bylaws, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall
be disregarded. Notwithstanding the foregoing provisions of this
bylaw, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder with respect to the
matters set forth in this bylaw.
Section 12. Notice of Stockholder Business.
(a) At an annual or special meeting of the stockholders, only
such business shall be conducted as shall have been brought before
the meeting (i) pursuant to the corporations notice of meeting,
(ii) by or at the direction of the Board of Directors or (iii) by
a stockholder of the corporation who is a stockholder of record at
the time of giving of the notice provided for in this bylaw, who
shall be entitled to vote at such meeting and who complies
with the notice procedures set forth in this bylaw.
(b) For business to be properly brought before a meeting by a
stockholder pursuant to clause (iii) of paragraph (a) of this
bylaw, the stockholder must have given timely notice thereof in
writing to the Secretary of the corporation. To be timely, a
stockholders notice with respect to an annual meeting 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 first anniversary of the preceding years annual
meeting; provided, however, that in the event that the date of the
meeting is changed by more than 30 days from such anniversary
date, notice by the stockholder to be timely must be received no
later than the close of business on the 10th day following the
earlier of the day on which notice of the date of the meeting was
mailed or public disclosure was made. To be timely, a
stockholders notice with respect to a special meeting must be
received no later than the close of business on the
10th day following the earlier of the day on which notice of the
meeting was mailed or public disclosure was made. A stockholders
notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the meeting (A) a brief
description of the business desired to be brought before the
meeting and the reasons for conducting such business at the
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meeting, (B) the name and address, as they appear on the
corporations books, of the stockholder proposing such business,
and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (C) the class and number of shares of
the corporation which are owned beneficially and of record by such
stockholder of record and by the beneficial owner, if any, on
whose behalf the proposal is made and (D) any material interest of
such stockholder of record and the beneficial owner, if any, on
whose behalf the proposal is made in such business.
(c) Notwithstanding anything in these bylaws to the contrary,
no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this bylaw. The
Chairman of the meeting shall, if the fact warrant, determine and
declare to the meeting that business was not properly brought
before the meeting and in accordance with the procedures
prescribed by these bylaws, and if he should so determine, he
shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted.
Notwithstanding the foregoing provisions of this bylaw, a
stockholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder with respect to the matters set
forth in this by law.
ARTICLE III. BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
corporation shall be managed by its Board of Directors.
Section 2. Number and Tenure. The Board of Directors shall
consist of three or more members, the number thereof to be
determined from time to time by resolution of the Board of
Directors. Directors need not be stockholders. Each Director
shall hold office until the next annual meeting of stockholders
and until his successor shall have been elected and shall have
qualified.
Section 3. Annual and Regular Meetings. An annual meeting of the
Board of Directors shall be held, without other notice than this
bylaw, immediately after, and at the same place as, the annual
meeting of stockholders. The Board of Directors may also provide,
by resolution, the time and place, either within or without the
State of Delaware, for the holding of other regular meetings
without other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the President,
Secretary or any two Directors. The persons authorized to call
special meetings of the Board of Directors may fix any place,
either within or without the State of Delaware, as the place for
holding any special meeting of the Board of Directors called by
them.
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Section 5. Notice. Notice of any special meeting of the Board of
Directors shall be given at least forty-eight (48) hours prior
thereto by written notice delivered personally or mailed to each
Director at his business address or by telegram or facsimile
transmission. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by
telegram, such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. If notice be
given by facsimile, such notice shall be deemed to be delivered
upon receipt of a facsimile delivery confirmation from the
addressees last known facsimile number. Any Director may waive
notice of any meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except where
a Director attends a meeting for the express purpose of objecting
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 Board of Directors need be specified in the notice or
waiver of notice of such meeting.
Section 6. Quorum. A majority of the Directors shall constitute a
quorum for the transaction of business at any meeting of the Board
of Directors, but if less than such majority is present at a
meeting, a majority of the Directors present may adjourn the
meeting from time to time without further notice.
Section 7. Manner of Acting. The act 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, provided, that 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 the members of the Board of Directors or such
committee, as the case may be, consent thereto in writing or
writings filed with the minutes of proceedings of the Board of
Directors or such committee.
Section 8. Vacancies. Any vacancy occurring in the Board of
Directors, including a vacancy resulting from enlargement of the
Board, may be filled by the Directors by vote of a majority of the
Directors then in office though less than a quorum of the Board of
Directors, or by the plurality of the votes cast at a meeting of
stockholders. A Director elected to fill a vacancy shall be
elected for the unexpired term of his predecessor in office, or in
the case of an enlargement of the board, until the next annual
meeting of stockholders and until his successor shall have been
elected and shall have qualified.
Section 9. Compensation. By resolution of the Board of Directors,
the Directors may be paid their expenses, if any, of attendance at
each meeting of the Board of Directors, and with the exception of
Directors who are also officers of the corporation may be paid a
fixed sum for attendance at each meeting of the Board of Directors
and/or a stated salary as a Director.
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Section 10. Telephonic Meetings. Members of the Board of
Directors, or any Committee thereof, may participate in a meeting
of the Board or Committee by means of conference telephone or
similar communications equipment, by means of which all persons
participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section shall
constitute presence in person at the meeting.
Section 11. Committees.
(a) Powers and Authority. The Corporation shall be governed by
the provisions of 8 Del.C. 141(c)(2), as that statute may be
amended from time to time, in respect to the powers and authority
of any committee of the Board of Directors.
(b) Formation. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the
directors of the Corporation. The Board 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 disqualification
of a member of the committee, the member or members thereof
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
place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and to the extent
provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it.
(c) Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may
make, alter and repeal rules for the conduct of its business. In
the absence of such rules each committee shall conduct its
business in the same manner as the Board of Directors conducts its
business pursuant to Article III of these bylaws.
ARTICLE IV. OFFICERS
Section 1. Number. The officers of the corporation shall be a
Chairman of the Board, President, one or more Vice-Presidents (the
number thereof to be determined by the Board of Directors), a
Secretary, and a Treasurer, each of whom shall be elected by the
Board of Directors. One or more Assistant Secretaries and
Assistant Treasurers and such other officers and assistant
officers as may be deemed necessary may also be appointed from
time to time by the Board of Directors. Any two or more offices
may be held by the same person, except the offices of President
and Secretary.
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Section 2. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be
elected annually by the Board of Directors at the first meeting of
the Board of Directors held after each annual meeting of the
stockholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified or
until his death or until he shall resign or shall have been
removed in the manner hereinafter provided.
Section 3. 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 interests of the corporation
would be served thereby, but such removal shall be without
prejudice to the contract rights, if any, of the person so
removed.
Section 4. Vacancies. A vacancy of any office because of death,
resignation, removal, disqualification or otherwise, may be filled
by the Board of Directors for the unexpired portion of the term.
Section 5. Chairman of the Board and Vice Chairman of the Board.
The Board of Directors may appoint a Chairman of the Board and may
designate the Chairman of the Board as Chief Executive Officer.
If the Board of Directors appoints a Chairman of the Board, he
shall perform such duties and possess such powers as are assigned
to him by the Board of Directors. The Chairman of the Board shall
preside at all meetings of the Board of Directors and the
stockholders at which he is present. If the Board of Directors
appoints a Vice Chairman of the Board, he shall, in the absence or
disability of the Chairman of the Board, perform the duties and
exercise the powers of the Chairman of the Board and shall perform
such other duties and possess such other powers as may from time
to time be vested in him by the Board of Directors.
Section 6. President. The President shall be the Chief Operating
Officer of the corporation. Unless the Board of Directors has
designated the Chairman of the Board as Chief Executive Officer,
the President shall also be the Chief Executive Officer of the
corporation. The President shall, subject to the direction of the
Board of Directors, have general charge and supervision of the
business of the corporation, unless otherwise provided by the
Board of Directors. The President shall, when present and in the
absence of the Chairman of the Board and the Vice-Chairman of the
Board, if one shall be appointed, preside at all meetings of the
stockholders and of the Board of Directors. He may sign, with the
Secretary or any other proper officer of the corporation thereunto
authorized by the Board of Directors, certificates for shares of
the corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be
executed, except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors or by these
by laws to some other officer or agent of the corporation, or
shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board
of Directors from time to time.
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Section 7. The Vice President. In the absence of the President or
in the event of his death, inability or refusal to act, the Vice
President (or in the event there be more than one Vice President,
the Vice Presidents in the order designated at the time of their
election, or in the absence of any designation, then in the order
of their election) shall perform the duties of the President,
and when so acting, shall have all powers of and be subject to all
the restrictions upon the President. Any Vice President may sign,
with the Secretary or an Assistant Secretary, certificates for
shares of the corporation; and shall perform such other duties as
from time to time may be assigned to him by the President or by
the Board of Directors.
Section 8. The Secretary. The Secretary shall: (a) keep the
minutes of the stockholders and of the Board of Directors meetings
in one or more books provided for that purpose; (b) see that all
notices are duly given in accordance with the provisions of these
by laws or as required by law; (c) be custodian of
the corporate records and of the seal of the corporation and see
that the seal of the corporation is affixed to all documents the
execution of which on behalf of the corporation under its seal is
duly authorized; (d) keep a register of the post office address of
each stockholder; (e) sign with the President, or a Vice
President, certificates for shares of the corporation, the
issuance of which shall have been authorized by resolution of the
Board of Directors; and (f) in general perform all duties incident
to the office of Secretary and such other duties as from time to
time may be assigned to him by the President or by the Board of
Directors.
Section 9. The Treasurer. If required by the Board of Directors,
the Treasurer shall give a bond for the faithful discharge of his
duties in such sum and with such surety or sureties as the Board
of Directors shall determine. He shall: (a) have charge and
custody of and be responsible for all funds and securities of the
corporation; receive and give receipts for moneys due and
payable to the corporation from any source whatsoever, and deposit
all such moneys in the name of the corporation in such banks,
trust companies or other depositories as shall be selected in
accordance with the provisions of Article V of these by laws; (b)
have general charge of the stock transfer books of the corporation
unless a transfer agent shall have been appointed; (c) sign with
the President, or a Vice President, certificates for shares of the
corporation, the issuance of which shall have been authorized by
resolution of the Board of Directors; and (d) in general perform
all the duties incident to the office of Treasurer and such other
duties as may from time to time be assigned to him by the
President or by the Board of Directors.
Section 10. Assistant Secretaries and Assistant Treasurers. The
Assistant Secretaries, when authorized by the Board of Directors,
may sign with the President or a Vice-President certificates for
shares of the corporation the issuance of which shall have been
authorized by a resolution of the Board of Directors. The
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Assistant Treasurers shall respectively, if required by the
Board of Directors, give bonds for the faithful discharge of their
duties in such sums and with such surety or sureties as the Board
of Directors shall determine. The Assistant Secretaries and
Assistant Treasurers, in general, shall perform such duties as
shall be assigned to them by the Secretary or the Treasurer,
respectively, or by the President or the Board of Directors.
Section 11. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall
be prevented from receiving such salary by reason of the fact that
he is also a Director of the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contract. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract
or execute and deliver any instrument in the name of and on behalf
of the corporation, and such authority may be general or confined
to specific instances.
Section 2. Loans. No loans shall be contracted on behalf of the
corporation and no evidences of indebtedness shall be issued in
its name unless authorized by a resolution of the Board of
Directors. Such authority may be general or confined to specific
instances.
Section 3. Checks, Drafts, Etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of
indebtedness issued in the name of the corporation, shall be
signed by such officer or officers, agent or agents of the
corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositories
as the Board of Directors may select.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. Certificates representing
shares of the corporation shall be in such form as shall be
determined by the Board of Directors. Such certificates shall be
signed by or impressed with the facsimile signature of the
President or Vice President and the Secretary or any Assistant
Secretary or the Treasurer or any Assistant Treasurer, and signed
manually or impressed with a facsimile signature by a Transfer
Agent and/or a Registrar. All certificates for shares shall be
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consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are
issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation. All
certificates surrendered to the corporation for transfer shall
be canceled and no new certificates shall be issued until the
former certificate for a like number of shares shall have been
surrendered and canceled, except that in case of a lost, destroyed
or mutilated certificate a new one may be issued thereof upon such
terms and indemnity of the corporation as the Board of Directors
may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the
corporation shall be made only on the stock transfer books of the
corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Treasurer of the
corporation or, if appointed, the stock transfer agent of the
corporation, and on surrender for cancellation of the certificate
for such shares. The person in whose name shares stand on the
stock ledger of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
Section 3. Transfer Agents and Registrars. The Board of Directors
may appoint one or more transfer agents and one or more registrars
of transfer other than the corporation or an employee of the
corporation, and may require that all stock certificates bear the
certification or countersignature of any such transfer agent or
registrar. If any stock certificate is so certified or
countersigned with a manual signature by a transfer agent or by a
registrar other than the corporation or an employee of the
corporation, any other signature on the certificate may be a
facsimile, and if any person whose facsimile signature has been
placed upon a stock certificate as an officer, transfer agent or
registrar of the corporation shall have ceased to be an 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 issue.
ARTICLE VII. FISCAL YEAR
The fiscal year of the corporation shall begin on the first day of
April and end on the last day of March in each year.
ARTICLE VIII. SEAL
The Board of Directors shall provide a corporate seal which shall
be circular in form and shall have inscribed thereon the name of
the corporation and the state of incorporation and the words,
Corporate Seal.
ARTICLE IX. AMENDMENTS
Unless otherwise provided by the Certificate of Incorporation or
these By Laws, these By Laws may be amended or repealed, or new By
Laws may be adopted, (1) at any annual or special meeting of the
stockholders, by the affirmative vote of 51% of the stockholders,
present or in person or represented by proxy and entitled to vote
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on such action; provided, however, that the notice of such meeting
shall have been given as provided in these By Laws, which
notice shall mention that amendment or repeal of these By Laws, or
the adoption of new By Laws, is one of the purposes of such
meeting; (2) by written consent of the stockholders pursuant to
Section 10 of Article II; or (3) by action of the Board of
Directors.
ARTICLE X. INDEMNIFICATION
To the fullest extent permitted by Section 145 of the Delaware
General Corporation Law, the Corporation shall indemnify any
director or officer of the Corporation 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, and whether brought by a third
party or by or in the right of the Corporation, by reason of the
fact that he 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 against expenses (including attorneys fees),
liability, loss, judgment, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding.
Expenses (including attorneys fees) actually and reasonably
incurred by a director or officer in defending any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, and whether brought by
a third party or by or in the right of the Corporation, and
in which the director or officer is made or threatened to be made
a party by reason of the fact that he 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, shall be paid on behalf
of the director or officer by the Corporation in advance of the
final disposition of such action, suit, or proceeding and within
30 days of receipt by the secretary of the Corporation of (i) an
application from such director or officer setting forth the basis
for such indemnification, and (ii) if required by law at the time
such application is made, an undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be
determined that the director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article. The
financial ability of any director or officer to make a repayment
contemplated by this provision shall not be a prerequisite to the
making of an advance. Expenses incurred by other representatives
or employees of the Corporation who are not directors or officers
of the Corporation may be paid upon terms and conditions, if any,
as the Board of Directors deems appropriate.
Such indemnity and right to advancement of expenses shall inure to
the benefit of the heirs, executors and administrators of any
director or officer so indemnified pursuant to this Article. The
right to indemnification and to advancement of expenses under this
Article shall be a contract right. Such indemnification and
advancement of expenses shall be in addition to any other
rights to which those directors and officers seeking
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indemnification and advancement of expenses may be entitled under
any law, agreement, vote of stockholders, or otherwise.
Any repeal or amendment of this Article by the directors or
stockholders of the Corporation or by changes in applicable law
shall, to the extent permitted by applicable law, be prospective
only, and shall not adversely affect any right to indemnification
or advancement of expenses of a director or officer of the
Corporation existing at the time of such repeal or amendment. In
addition to the foregoing, the right to indemnification and
advancement of expenses shall be to the fullest extent permitted
by the General Corporation Law of the State of Delaware or any
other applicable law and all amendments to such laws as hereafter
enacted from time to time.