15
AMENDED AND RESTATED
BY-LAWS
OF
TEKNOWLEDGE CORPORATION
Amended and Restated
By-Laws Adopted:
April 15, 1996
16
AMENDED AND RESTATED
BY-LAWS
OF
TEKNOWLEDGE CORPORATION
TABLE OF CONTENTS
Page
ARTICLE I - MEETINGS OF STOCKHOLDERS ............................... 1
SECTION 1. Annual Meetings ................................... 1
SECTION 2. Special Meetings .................................. 1
SECTION 3. Notice of Meetings ................................ 2
SECTION 4. Conduct of Meetings ............................... 2
SECTION 5. Inspectors of Election ............................ 3
SECTION 6. Voting ............................................ 3
SECTION 7. Quorum ............................................ 4
SECTION 8. List of Stockholders .............................. 4
SECTION 9. No Action Without Meeting ......................... 4
ARTICLE II - BOARD OF DIRECTORS .................................... 4
SECTION 1. General Powers .................................... 4
SECTION 2. Number, Election, Term of Office and Qualifications 5
SECTION 3. Resignation ....................................... 5
SECTION 4. Removal or Increase in Number of Directors by
the Stockholders .................................. 5
SECTION 5. Vacancies ......................................... 5
SECTION 6. Annual and Regular Meetings ....................... 5
SECTION 7. Special Meetings .................................. 6
SECTION 8. Notice of Special Meetings ........................ 6
SECTION 9. Quorum ............................................ 6
SECTION 10. Regulations ....................................... 6
SECTION 11. Compensation ...................................... 6
SECTION 12. Participation in a Meeting by Conference Telephone 7
SECTION 13. Written Consent in Lieu of Meeting ................ 7
ARTICLE III - EXECUTIVE AND OTHER COMMITTEES ....................... 7
SECTION 1. Designation, Term of Office and Qualifications .... 7
SECTION 2. Powers ............................................ 7
SECTION 3. Resignation, Removal or Dissolution ............... 7
SECTION 4. Vacancies ......................................... 8
SECTION 5. Meetings .......................................... 8
SECTION 6. Quorum ............................................ 8
SECTION 7. Other Committees .................................. 9
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ARTICLE IV - NOTICES ............................................... 9
SECTION 1. Waiver of Notice .................................. 9
SECTION 2. Attendance at Meeting ............................. 9
ARTICLE V - OFFICERS ............................................... 9
SECTION 1. Number ............................................ 9
SECTION 2. Selection, Term of Office and Qualifications ...... 9
SECTION 3. Resignation ....................................... 10
SECTION 4. Removal ........................................... 10
SECTION 5. Vacancies ......................................... 10
SECTION 6. Chairman .......................................... 10
SECTION 7. President and Chief Operating Officer ............. 10
SECTION 8. Vice Presidents ................................... 10
SECTION 9. Secretary ......................................... 11
SECTION 10. Treasurer ......................................... 11
SECTION 11. Surety Bonds ...................................... 11
ARTICLE VI - EXECUTION OF INSTRUMENTS .............................. 11
SECTION 1. Execution of Instruments Generally ................ 11
SECTION 2. Execution of Checks, All Evidence of Indebtedness
and Similar Instruments ........................... 12
ARTICLE VII - CAPITAL STOCK ........................................ 12
SECTION 1. Certificate of Stock .............................. 12
SECTION 2. Transfer of Stock ................................. 12
SECTION 3. Lost, Stolen or Destroyed Certificates ............ 12
SECTION 4. Regulations, Transfer Agents and Registrars ....... 13
SECTION 5. Making of Record Date ............................. 13
SECTION 6. Dividends and Reserves ............................ 13
SECTION 7. Record Ownership .................................. 13
ARTICLE VIII - BOOKS, ACCOUNTS AND OTHER RECORDS ................... 14
ARTICLE IX - CORPORATE SEAL ........................................ 14
ARTICLE X - FISCAL YEAR ............................................ 14
ARTICLE XI - INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS .............................................. 14
SECTION 1. Directors and Executive Officers .................. 14
SECTION 2. Other Officers, Employees and Other Agents ........ 15
SECTION 3. Good Faith ........................................ 15
SECTION 4. Expenses .......................................... 15
SECTION 5. Enforcement ....................................... 16
SECTION 6. Non-Exclusivity of Rights ......................... 16
SECTION 7. Survival of Rights ................................ 17
SECTION 8. Insurance ......................................... 17
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SECTION 9. Amendments ........................................ 17
SECTION 10. Savings Clause .................................... 17
SECTION 11. Certain Definitions ............................... 17
ARTICLE XII - AMENDMENTS ........................................... 18
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TEKNOWLEDGE CORPORATION
(a Delaware Corporation)
AMENDED AND RESTATED
BY-LAWS
-------------------------------------
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. Annual Meetings. The annual meeting of the stockholders of the
Corporation shall be held at such date and time and place, either within or
without the state of Delaware, as the Board of Directors may designate. At such
annual meeting, Directors shall be elected and any other business may be
transacted which may properly come before the meeting.
SECTION 2. Special Meetings.
(a) Special meetings of the stockholders of the Corporation
may be called, for any purpose or purposes, by the Chairman and Chief Executive
Officer or the President and Chief Operating Officer or the Board of Directors
at any time. A special meeting called by the Chairman and Chief Executive
Officer or the President and Chief Operating Officer or the Board of Directors
shall be held at such place, on such date and at such time as he or they shall
fix.
(b) Subject to the rights of holders of any class or series of
stock having a preference over the Common Stock as to dividends or upon
liquidation, (x) nominations for the election of directors and (y) business
proposed to be brought before any stockholder meeting, may be made by the Board
of Directors or a proxy committee appointed by the Board of Directors or by any
stockholder entitled to vote in the election of directors generally. However,
any such stockholder may nominate one or more persons for election as directors
at a meeting or propose business to be brought before a meeting, or both, only
if such stockholder has given timely notice in proper written form of his intent
to make such nomination or nominations or to propose such business. To be
timely, a stockholder's notice must be delivered to or mailed and received by
the Secretary of the Corporation not later than ninety (90) days prior to such
meeting; provided, however, that in the event that less than one hundred (100)
days notice or prior public disclosure of the date of the meeting is given or
made to stockholders, notice by the stockholder to be timely must be received
not later than the close of business on the tenth (10th) day following the date
on which such notice of the date of such meeting was mailed or such public
disclosure was made. To be in proper written form, a stockholder's notice to the
Secretary shall set forth:
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(i) the name and address of the stockholder who
intends to make the nominations or propose the business and, as the case may be,
of the person or persons to be nominated or of the business to be proposed;
(ii) a representation that the stockholder is a
holder of record of stock of the Corporation entitled to vote at such meeting
and, if applicable, intends to appear in person or by proxy at the meeting to
nominate the person or persons or to bring such business before the meeting
specified in the notice;
(iii) if applicable, a description of all arrangements
or understandings between the stockholder and each nominee and any other person
or persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;
(iv) such other information regarding each nominee
or each matter of business to be proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the proxy rules
of the Securities and Exchange Commission had the nominee been nominated or the
matter been proposed by the Board of Directors; and
(v) if applicable, the consent of each nominee to
serve as a Director of the Corporation if so elected.
The chairman of the meeting may refuse to acknowledge the nomination of
any person or the proposal of any business not made in compliance with the
foregoing procedure.
SECTION 3. Notice of Meetings. Written notice of the time, place and purposes of
each meeting of the stockholders shall be given by, or at the direction of, the
Secretary or person(s) authorized to call the meeting and shall be served
personally or by mail on each stockholder of record entitled to vote at such
meeting not less than ten (10) nor more than fifty (50) days before the meeting.
If mailed, such notice shall be directed to each such stockholder at his address
as it appears on the stock book of the Corporation unless he shall have filed
with the Secretary a written request that notice intended for him be mailed to
some other address, in which case it shall be mailed to the address designated
in such request.
SECTION 4. Conduct of Meetings. Each meeting of the stockholders shall be
presided over by the Chairman and Chief Executive Officer (in accordance with
the provisions of Section 6 of Article V of these Bylaws) or, if such officer
shall not be present, by the President and Chief Operating Officer, or if such
officer shall not be present, by such person as may be designated from time to
time by the Board of Directors or, in the absence of such person or if there
shall be no such designation, by a chairman to be chosen at the meeting. The
Secretary of the Corporation shall act as secretary of each meeting of the
stockholders, or if he shall not be present, such person as may be designated by
the Board of Directors shall act as such secretary or, in the absence of such
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person or if there shall be no such designation, the meeting may choose a
secretary.
Unless otherwise approved by the chairman of the meeting (the "Chairman"),
attendance at the stockholders' meeting is restricted to stockholders of record,
persons authorized in accordance with Section 6 of Article I of these Bylaws to
act by proxy, and officers of the Corporation. The Chairman shall call the
meeting to order, establish the agenda, and conduct the business of the meeting
in accordance therewith or, at the Chairman's discretion, it may be conducted
otherwise in accordance with the wishes of the stockholders in attendance. The
date and time of the opening and closing of the polls for each matter upon which
the stockholders will vote at the meeting shall be announced at the meeting.
The Chairman shall also conduct the meeting in an orderly manner, rule on
the precedence of and procedure on, motions and other procedural matters, and
exercise discretion with respect to such procedural matters with fairness and
good faith toward all those entitled to take part. The Chairman may impose
reasonable limits on the amount of time taken up at the meeting on discussion in
general or on remarks by any one stockholder. Should any person in attendance
become unruly or obstruct the meeting proceedings, the Chairman shall have the
power to have such person removed from participation. Notwithstanding anything
in the Bylaws to the contrary, no business shall be conducted at a meeting
except in accordance with the procedures set forth in this Section 4 and Section
2(b) above. The Chairman of a meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
and in accordance with the provisions of this Section 4 and Section 2(b), 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.
SECTION 5. Inspectors of Election. At each meeting of stockholders at which an
election of Directors is to be held, the chairman of the meeting shall appoint
one or more persons, who need not be stockholders, to act as inspectors of
election at such meeting. The inspectors so appointed, before entering on the
discharge of their duties, shall take and subscribe an oath or affirmation
faithfully to execute the duties of inspectors at such meeting with strict
impartiality and according to the best of their ability, and thereupon the
inspectors shall take charge of the polls and after the balloting shall canvass
the votes and make a certificate of the results of the vote taken. No Director
or candidate for the office of Director shall be appointed an inspector.
SECTION 6. Voting. At each meeting of the stockholders, each stockholder
entitled to vote at such meeting shall be entitled to one vote for each share of
stock standing in his name on the books of the Corporation and may vote either
in person or by proxy, but no proxy shall be voted after three years from its
date unless such proxy provides for a longer period. Every proxy must be
executed in writing by the stockholder or by his duly authorized attorney.
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All elections shall be determined by a plurality of the votes cast unless
otherwise required by the Certificate of Incorporation, and except as otherwise
provided by law or the Certificate of Incorporation or these Bylaws, all other
matters shall be determined by a majority of the votes cast affirmatively or
negatively.
SECTION 7. Quorum. At all meetings of the stockholders, the presence, in person
or by proxy, of the holders of record of a majority of the shares of stock
issued and outstanding, and entitled to vote thereat, shall be necessary and
sufficient to constitute a quorum for the transaction of business, except as
otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws. In the absence of a quorum, the holders of record of a majority of the
shares of stock present, in person or by proxy, and entitled to vote thereat, or
if no such stockholders are present in person or by proxy, any officer entitled
to preside at, or act as secretary of, such meeting, without notice other than
by announcement at the meeting, may adjourn the meeting from time to time, for a
period of not more than thirty (30) days at one time, until a quorum shall
attend. At any such adjourned meeting at which a quorum shall be present in
person or by proxy, any business may be transacted that might have been
transacted at the meeting as originally called.
SECTION 8. List of Stockholders. The officer who shall have charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at such meeting, arranged in alphabetical order with the address, and the
number of shares registered in the name, of each such stockholder. Such list
shall be open to the examination of any stockholder for ten (10) days prior to
the meeting at the place of the meeting and shall be produced and kept at the
time and place of the meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present.
SECTION 9. No Action Without Meeting. Any action required or permitted to be
taken by the stockholders of the Corporation must be effected at a duly called
annual or special meeting of such holders and may not be effected by any consent
in writing by such holders.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Powers. Except as otherwise provided by law, the Certificate
of Incorporation or these Bylaws, the property, affairs and business of the
Corporation shall be managed by the Board of Directors. In addition to the
powers and authority expressly conferred on it by these By-Laws, the Board of
Directors may exercise all such powers of the Corporation, and do all such
lawful acts and things, as are not by law, by the Certificate of Incorporation
or by these By-Laws directed or required to be exercised or done by the
stockholders.
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SECTION 2. Number, Election, Term of Office and Qualifications. The authorized
number of Directors of the Corporation shall consist of a maximum of ten (10)
directors, with the exact number as fixed from time to time by the Board of
Directors either by a resolution or a by-law duly adopted by the Board of
Directors. Except as provided in Section 4 or 5 of this Article II, the
Directors shall be elected at the annual meeting of the stockholders. All
elections of Directors shall be by a majority of the votes cast. Except as
provided by law, each Director (whether elected at a meeting of the stockholders
or otherwise) shall continue in office until the annual meeting of the
stockholders held next after his election and until his successor shall have
been elected and shall qualify, or until his death, resignation or removal in
the manner provided in Section 3 or 4 of this Article II. No Director need be a
stockholder.
SECTION 3. Resignation. Any Director may resign at any time by giving
written notice to the Chairman or the Secretary. Unless otherwise specified
therein, such resignation shall take effect on receipt thereof.
SECTION 4. Removal or Increase in Number of Directors by the Stockholders. Any
Director may be removed at any time, either with or without cause, by the
affirmative vote of the holders of record of a majority of the shares of stock
issued and outstanding and entitled to vote, given at a meeting of the
stockholders called for that purpose. Any vacancy in the Board of Directors (i)
resulting from any such removal, or (ii) resulting from any increase in the
number of Directors at a meeting of the stockholders, may be filled at such
meeting in the manner provided in Section 2 of this Article II, provided that,
in the event that the stockholders do not fill such vacancy at such meeting,
such vacancy may be filled in the manner provided in Section 5 of this Article
II.
SECTION 5. Vacancies. If any vacancy shall occur in the Board of Directors by
reason of death, resignation, removal, increase in the number of Directors
(whether by action of the Board of Directors or the stockholders) or otherwise,
such vacancy may be filled, subject to the provisions of Section 4 of this
Article II, by a majority vote of Directors then in office, though less than a
quorum, provided, however, that a Director so elected to fill such a vacancy may
be displaced in the manner provided by law.
In the event that the resignation of any Director shall specify that it
shall take effect at a future date, the vacancy resulting from such resignation
may be filled by a majority vote of the Directors then in office, including that
of the Director who shall have so resigned, and the vote thereon shall take
effect when such resignation shall become effective.
SECTION 6. Annual and Regular Meetings. As soon as practicable after the annual
meeting of the stockholders in each year, an annual meeting of the Board of
Directors shall be held at such time and place as the Board may determine by
resolution duly adopted at any meeting of the Board, for organization of the
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Board of Directors, for the election of officers and for the transaction o such
other business as may properly come before the meeting.
Regular meetings of the Board of Directors shall be held at such times and
places (within or without the State of Delaware) as the Board may from time to
time determine by resolution duly adopted at any meeting of the Board.
SECTION 7. Special Meetings. A special meeting of the Board of Directors may be
called at any time by the Chairman and shall be called by the Chairman or the
Secretary on the written request of two Directors, and shall be held at such
time and place (within or without the State of Delaware) as may be fixed by the
Chairman or by such Directors in such request, as the case may be, provided that
the time so fixed shall permit the giving of notice as provided in Section 8 of
this Article II.
SECTION 8. Notice of Special Meetings. Notice of the time and place of each
special meeting of the Board of Directors shall be sent to each Director by
mail, facsimile, telegraph, wireless telegraph, radio or cable, addressed to him
at his address as it appears on the record of the Corporation, at least ten (10)
days before the day on which such meeting is to be held, or telephoned, sent by
facsimile (with confirmation of receipt) or delivered to him personally, at
least forty-eight (48) hours before the time at which the meeting is to be held.
Except as otherwise provided in these By-Laws, or by law, such notice need not
state the purposes of the meeting.
SECTION 9. Quorum. At all meetings of the Board of Directors the presence in
person of a majority of the Directors then in office, but in no event less than
one-third (1/3) of the total number of Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business, and, except
as otherwise provided by law, by the Certificate of Incorporation or by these
By-Laws, if a quorum shall be present, the act of a majority of the Directors
present shall be the act of the Board of Directors. In the absence of a quorum,
a majority of the Directors present, or if no Director is present, any officer
entitled to preside at, or act as secretary of, such meeting, without notice
other than by announcement at the meeting, may adjourn the meeting from time to
time, for a period of not more than thirty (30) days at any one time, until a
quorum shall be present.
SECTION 10. Regulations. The Board of Directors may adopt such rules and
regulations for the conduct of its meetings and for the management of the
property, affairs and business of the Corporation as it may deem proper, not
inconsistent wit:h law, the Certificate of Incorporation or these By-Laws.
SECTION 11. Compensation. Directors, as such, shall receive no stated salary for
their services, but Directors who are not full time employees of the Corporation
may receive such compensation for their services and allowances for expense, as
the Board of Directors may fix from time to time. Nothing herein shall be
construed to preclude any Director from serving the Corporation in any other
capacity and receiving compensation therefor.
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SECTION 12. Participation in a Meeting by Conference Telephone. Any member of
the Board of Directors may participate in a meeting of the Board by means of
conference telephone or similar communications equipment by means of which all
persons participating in a meeting pursuant to this section shall constitute
presence in person at such meeting within the meaning of Section 9 of this
Article II, or for any other purpose.
SECTION 13. Written Consent in Lieu of Meeting. 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 a written consent thereto shall be signed by
all members of the Board or of such committee, as the case may be, and such
written consent shall be filed with the minutes of proceedings of the Board or
committee.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. Designation, Term of Office and Qualifications. The Board of
Directors may in its discretion, by resolution adopted at any meeting by a
majority of the whole Board, designate an Executive Committee consisting of such
number of Directors as may be so designated, but in no event less than two. Each
member of the Executive Committee must be a Director and shall forthwith cease
to be a member of such committee if he shall cease to be a Director. Each member
of the Executive Committee shall continue in office until the annual meeting of
the Board of Directors held next after his designation, or until he shall cease
to be a Director, or until his death, resignation or removal, or until the
dissolution of the Executive Committee, in the manner provided in Section 3 of
this Article III.
SECTION 2. Powers. Except as may be provided by law or by the resolution of
designation, the Executive Committee, if so designated, shall have and may
exercise all of the powers of the Board of Directors in the management of the
business and affairs of the Corporation, expressly including the power to
declare a dividend or to authorize the issuance of stock, and including without
limitation all powers expressly conferred on the Board of Directors by these
By-Laws, and shall have power to authorize the seal of the Corporation to be
affixed to all papers which may require it, provided, however, that the
Executive Committee shall not have power to amend the Certificate of
Incorporation; to make, alter or repeal these By-Laws; to adopt an agreement of
merger or consolidation; to recommend to the stockholders the sale, lease or
exchange of all, or substantially all of the Corporation's property and assets;
to recommend to the stockholders a dissolution of the Corporation or a
revocation of a dissolution; to fill vacancies in the Board of Directors; or to
dissolve, remove members or change the number of, or fill vacancies in, the
Executive Committee.
SECTION 3. Resignation, Removal or Dissolution. Any member of the Executive
Committee may resign at any time by giving written notice to the Chairman or
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the Secretary. Unless otherwise specified therein, such resignation shall take
effect on receipt thereof. Any member (except a member ex officio) of the
Executive Committee may be removed at any time, either with or without cause, by
a majority vote of the Directors then in office, at any meeting of the Board of
Directors called for that purpose. The Board of Directors may, by resolution
duly adopted at any meeting, dissolve the Executive Committee.
SECTION 4. Vacancies. If any vacancy shall occur in the Executive Committee by
reason of death, resignation, removal or otherwise, such vacancy may be filled
at any meeting of the Board of Directors.
SECTION 5. Meetings. The Executive Committee may provide for the holding of
regular meetings at such times and places (within or without the State of
Delaware) as it may from time to time determine by resolution duly adopted at
any meeting of the Executive Committee. No notice of any such meeting need be
given. A special meeting of the Executive Committee may be called at any time by
the Chairman and/or the Chairman of the Executive Committee. Notice of the time
and place (within or without the State of Delaware) of each special meeting
shall be sent to each member of the Executive Committee by mail, facsimile
telegraph, wireless telegraph, radio or cable, addressed to him at his address
as it appears on the records of the Corporation, at least ten (10) days before
the day on which the meeting is to be held, or telephoned, sent by facsimile
(with confirmation of receipt) or delivered to him personally, at least
forty-eight (48) hours before the time at with the special meeting is to be
held. Except as otherwise provided by law or in these By-Laws, such notice need
not state the purpose of the special meeting. Any member of the Executive
Committee may participate in a meeting of the Executive Committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other. Participation in a
meeting by such means shall constitute presence in person at such meeting within
the meaning of Section 6 of this Article III, or for any other purpose. The
Executive Committee shall keep minutes of its proceedings and shall report the
same to the meeting of the Board of Directors held next after such proceedings
are taken. The Executive Committee may adopt such rules and regulations for the
conduct of its meetings as it may deem proper, not inconsistent with law, the
Certificate of Incorporation or these By-Laws.
SECTION 6. Quorum. At all meetings of the Executive Committee the presence in
person of a majority of the membership of the Executive Committee then in office
shall be necessary and sufficient to constitute a quorum for the transaction of
business, and, except as otherwise provided by law, by the Certificate of
Incorporation or by these By-Laws, if a quorum shall be present, the act of a
majority of the members present shall be the act of the Executive Committee. In
the absence of a quorum, a majority of the members present, without notice other
than by announcement at the meeting, may adjourn the meeting from time to time,
for a period of not more than thirty (30) days at one time, until a quorum shall
be present.
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SECTION 7. Other Committees. The Board of Directors may in its discretion, by
resolution adopted at any meeting by a majority of the whole Board, designate
such other committees as it may deem advisable. Each such committee shall
consist of such number of Directors as may be so designated, but in no event
less than two and shall have and may exercise such powers, and shall perform
such duties, in such manner, as may be delegated to it by resolution of the
Board of Directors. The Board of Directors shall have power at any time to
remove any member of any such committee, with or without cause, and to fill
vacancies in and to dissolve any such committee.
ARTICLE IV
NOTICES
SECTION 1. Waiver of Notice. Whenever any notice is required to be given by law,
by the Certificate of Incorporation or by these By-Laws, a waiver thereof by the
person or persons entitled to such notice given before or after the time stated
therein, in writing, shall be deemed equivalent to such notice.
SECTION 2. Attendance at Meeting. Attendance of a person at any meeting, whether
of stockholders (in person or by proxy), Directors or the executive or any other
committee, shall constitute a waiver of notice of such meeting, except when such
person attends such meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not legally called or convened.
ARTICLE V
OFFICERS
SECTION 1. Number. The officers of the Corporation shall be a Chairman of the
Board and Chief Executive Officer ("Chairman"), President and Chief Operating
Officer, one or more Vice Presidents, Secretary and Treasurer. Other officers
may be elected or appointed in accordance with the provisions of Section 2 of
this Article V. Any two or more offices may be held by the same person.
SECTION 2. Selection, Term of Office and Qualifications.tions
(a) The officers shall be elected by the Board of Directors or by
such officer or officers as the Board of Directors may designate.
(b) Other officials, including without limitation one or more Vice
Presidents, Assistant Secretaries, and/or Assistant Treasurers, shall be chosen
in such manner, hold office for such period, have such authority, perform such
duties and be subject to removal as may be determined by the Board of Directors.
The Board of Directors may delegate to any officer or officers the power to
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appoint any such other officers, to fix their respective terms of office, to
prescribe their respective authorities and duties, to remove them and to fill
vacancies in any such offices.
(c) No officer need be a Director, and no officer need be a
stockholder.
SECTION 3. Resignation. Any officer may resign at any time, unless otherwise
provided in any contract with the Corporation, by giving written notice to the
Chairman or the Secretary. Unless otherwise specified therein, such resignation
shall take effect on receipt thereof.
SECTION 4. Removal. Any officer may be removed at any time, either with or
without cause, by the affirmative vote of a majority of the Directors then in
office; and any officer not elected by the Board of Directors may be removed in
such manner as may be determined by or pursuant to delegation from the Board of
Directors.
SECTION 5. Vacancies. If a vacancy shall occur, by reason of death,
disqualification, resignation, removal or otherwise, in any office required by
Section 2 of this Article V to be elected by the Board of Directors, such
vacancy may be filled for the unexpired portion of the term by the Board of
Directors. A vacancy in any other office shall be filled in such manner as may
be determined by, or pursuant to delegation from, the Board of Directors.
SECTION 6. Chairman. The Chairman shall, subject to the control of the Board of
Directors, exercise general management and supervision over the property,
affairs and business of the Corporation and shall authorize the other officers
of the Corporation to exercise such powers as he, in his discretion, may deem to
be in the best interest of the Corporation. Unless the Board of Directors
designates another person, the Chairman shall preside at all meetings of the
stockholders, of the Board of Directors and of the Executive Committee, and in
general the Chairman shall perform all duties incident to general management and
supervision of the Corporation and such other duties as from time to time may be
assigned to him by the Board of Directors.
SECTION 7. President and Chief Operating Officer. The President and Chief
Operating Officer, at the request of the Chairman or upon his absence or
disability, or in the event of a vacancy in the office of Chairman, shall
exercise all the powers of the Chairman as provided in Section 6. The President
and Chief Operating Officer in general shall perform all duties incident to the
powers authorized in him by the Chairman and such other duties as from time to
time may be assigned to him by the Board of Directors.
SECTION 8. Vice Presidents. There may be one or more Vice Presidents, as
determined by the Board of Directors or pursuant to delegation from the Board of
Directors. The Vice Presidents, in the order of their seniority or such other
order as the Board of Directors or the Chairman may from time to time determine,
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at the request of the highest ranking officer identified in Sections 6 and 7 of
this Article V who is present and in office or upon his absence or disability,
or in the event of vacancies in both of the offices identified in Sections 6 and
7, shall exercise all of the powers provided in Sections 6 and 7. The Vice
Presidents or any of them shall have the power to enter into contracts on behalf
of the Corporation and to hire and fire employees of the Corporation and in
general shall have such duties and exercise such other powers as from time to
time may be assigned to them by these By-Laws, by the Board of Directors or by
the officers identified in Sections 6 and 7.
SECTION 9. Secretary. The Secretary shall record all the proceedings of the
meetings of the stockholders and the Board of Directors in a book to be kept for
that purpose, and perform such other duties as shall be assigned to the
Secretary.
SECTION 10. Treasurer. The Treasurer shall have custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation. The Treasurer shall cause
all moneys and other valuable effects to be deposited in the name and to the
credit of the Corporation in such depositories as may be designated by the Board
of Directors. The Treasurer shall cause the funds of the Corporation to be
disbursed when such disbursements have been duly authorized, taking proper
vouchers for such disbursements, and shall render to the Chairman and the Board
of Directors, whenever requested, an account of all his transactions as
Treasurer and of the financial condition of the Corporation. The Treasurer
shall, in general, perform all duties and have all powers incident to the office
of Treasurer and shall perform such other duties and have such other powers as
may from time to time be assigned to him by these By-Laws, by the Board of
Directors or by the Chairman.
SECTION 11. Surety Bonds. In the event that the Board of Directors shall so
require, any officer or agent of the Corporation shall execute to the
Corporation a bond in such sum and with such surety or sureties as the Board of
Directors may direct, conditioned on the faithful performance of his duties to
the Corporation, including responsibility for negligence an for the accounting
of all property, funds or securities of the Corporation that may come into his
hands.
ARTICLE VI
EXECUTION OF INSTRUMENTS
SECTION 1. Execution of Instruments Generally. Subject to the control of the
Board of Directors and except as otherwise provided by law, by the Certificate
of Incorporation or by these By-Laws, any one or more of the following persons,
the Chairman, or any officer, agent or employee of the Corporation who may from
time to time be authorized (either generally or in specific instances) by the
Board of Directors or by the Chairman to do so, may sign, execute (with or
without the seal of the Corporation), verify, acknowledge and deliver in the
name and on behalf of the Corporation any agreement, deed, contract, proxy,
covenant, bond or other security, or any other document, instrument or writing
of any nature.
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SECTION 2. Execution of Checks, All Evidence of Indebtedness and Similar
Instruments. All checks, drafts, bills of exchange, notes, acceptances and
endorsements and all evidences of indebtedness of the Corporation whatsoever
shall be signed by such officers, agents or employees of the Corporation, or any
one of them, and in such manner, as from time to time may be determined (either
generally or in specific instances) by the Board of Directors or by such officer
or officers to whom the Board of Directors may delegate the power so to
determine.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Certificate of Stock. The interest of each stockholder shall be
evidenced by a certificate representing shares of stock of the Corporation which
shall be in such form as the Board of Directors may from time to time adopt.
Each such certificate shall be signed by the Chairman or President and Chief
Operating Officer or a Vice President, and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, shall be sealed with the
seal of the Corporation, and shall be countersigned and registered in such
manner, if any, as the Board of Directors may prescribe. In case such
certificate is signed (i) by a transfer agent or (ii) by a transfer clerk and a
registrar, the signature of any such officer, and the seal of the Corporation on
such certificate, may be facsimile. In case any officer who shall have signed,
or whose facsimile signature shall have been used on any such certificate, shall
cease to be such officer of the Corporation, before such certificate shall have
been delivered by the Corporation, such certificate may nevertheless be adopted
by the Corporation and be issued and delivered as though the person who signed
such certificate, or whose facsimile signature shall have been used thereon, had
not ceased to be such officer; and such issuance and delivery shall constitute
adoption of such certificate by the Corporation. There shall be entered on the
stock books of the Corporation the number of each certificate issued, the number
of shares represented thereby, the name of the person to whom such certificate
was issued and the date of issuance thereof.
SECTION 2. Transfer of Stock. The original stock ledger of the Corporation shall
contain the names, alphabetically arranged, and addresses of all persons who are
stockholders of the Corporation and the number of shares of stock held by them
respectively. Transfer of shares of the stock of the Corporation shall be made
only on the books of the Corporation by the holder of record thereof, or by his
attorney thereunto duly authorized by a power of attorney executed in writing
and filed with t:he Secretary, upon the surrender of the certificate or
certificates for such shares properly endorsed, with such evidence of the
authenticity of such transfer, authorization and other matters as the
Corporation or its agents may reasonably require, and accompanied by all
necessary federal and state stock transfer stamps.
SECTION 3. Lost, Stolen or Destroyed Certificates. A certificate for share of
the stock of the Corporation may be issued in place of any certificate lost,
stolen or destroyed, but only on delivery to the Corporation, if the Board of
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Directors so requires, of a bond of indemnity, in form and amount and with one
or more sureties satisfactory to the Board, and of such evidence of such loss,
theft or destruction as the Board may require.
SECTION 4. Regulations, Transfer Agents and Registrars. The Board of Directors
may make such rules and regulations as it may deem expedient concerning the
issuance and transfer of certificates for shares of the stock of the Corporation
and may appoint transfer agents or registrars, or both, and may require all
certificates of stock to bear the signature of either or both. Nothing herein
shall be construed to prohibit the Corporation from acting as its own transfer
agent at any of its offices.
SECTION 5. Making of Record Date. In lieu of closing the stock transfer books of
the Corporation in the manner provided by law, the Board of Directors may fix in
advance a date, not more than sixty (60) days nor less than ten (10) days
preceding the date of the meeting of stockholders and not more than sixty (60)
days preceding the date for the payment of any dividend, or the date of the
allotment of rights, or the date when any change or conversion or exchange of
capital stock shall go into effect, or a date in connection with obtaining the
vote of stockholders for any purpose, as a record date for the determination of
the stockholders entitled to notice of, and to vote at, any such meeting and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to, so vote; and in such
case such stockholders and only such stockholders as shall be stockholders of
record on the date so fixed shall be entitled to such notice of, and to vote at,
such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to so vote, as the case may be, notwithstanding any transfer of any stock on the
books of the Corporation after any such record date fixed as aforesaid.
SECTION 6. Dividends and Reserves. Dividends shall be declared and paid at such
times as the Board of Directors may determine, provided that no dividends shall
be paid or declared contrary to applicable provisions of law or of the
Certificate of Incorporation. The Board of Directors may from time to time set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board, in its discretion, may deem proper as a reserve fund for
working capital, or to meet contingencies, or for equalizing dividends, or for
the purpose of repairing, maintaining or increasing the property or business of
the Corporation, or for any other purpose that the Board may deem to be in the
best interests of the Corporation. The Board of Directors may, in its
discretion, modify or abolish any such reserve at any time.
SECTION 7. Record Ownership. The Corporation shall be entitled to recognize the
exclusive right of a person registered as such on the books of the Corporation
as the owner of the shares of the Corporation's stock to receive dividends, and
to vote as such owner, and shall not be bound to recognize any equitable or
other claim to or interest in such shares of the part of any other person,
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whether or not the Corporation shall have express or other notice thereof,
except as otherwise provided by law.
ARTICLE VIII
BOOKS, ACCOUNTS AND OTHER RECORDS
Except as otherwise provided by law, the books, accounts and other records
of the Corporation shall be kept at such place or places (within or without the
State of Delaware) as the Board of Directors or the Chairman may from time to
time designate.
ARTICLE IX
CORPORATE SEAL
The corporate seal of the Corporation shall have inscribed thereon the
name of the Corporation, the figures "1981" and the words "Corporate Seal", and
"Delaware." In all cases in which the corporate seal is duly authorized to be
used, it may be used by causing it or a facsimile of it to be impressed,
affixed, reproduced, engraved or printed.
ARTICLE X
FISCAL YEAR
The fiscal year of the Corporation shall begin on the first day of January
and end on the last day of December in each year.
ARTICLE XI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
SECTION 1. Directors and Executive Officers. The Corporation shall indemnify its
directors and executive officers to the fullest extent permitted by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in
the case of alleged occurrences of actions or omissions preceding 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); provided, however, that t;he Corporation
may limit the extent of such indemnification by individual contracts with its
Directors and executive officers; and provided, further, that the Corporation
shall not be required to indemnify any director or executive officer in
connection with any proceeding (or part thereof) initiated by such person or any
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proceeding by such person against the Corporation or its directors, officers,
employees or other agents unless (i) such indemnification is expressly required
to be made by law, (ii) the proceeding was authorized by the Board of Directors
of the Corporation or (iii) such indemnification is provided by the Corporation,
in its sole discretion, pursuant to the powers vested in the Corporation under
the Delaware General Corporation Law.
SECTION 2. Other Officers, Employees and Other Agents. The Corporation shall
have power to indemnify its other officers, employees and other agents as set
forth in the Delaware General Corporation Law.
SECTION 3. Good Faith.
(a) For purposes of any determination under this Article, a Director
or executive officer shall be deemed to have acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe that his or her conduct was unlawful, if such
action is based on the records or books of account of the Corporation or another
enterprise, or on information supplied to him or her by the officers of the
Corporation or another enterprise in the course of their duties, or on the
advice of legal counsel for the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise.
(b) The termination of any proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith
and in a manner which he or she reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal
proceeding, that he or she had reasonable cause to believe that his or her
conduct was unlawful.
(c) The provisions of this Section 3 shall not be deemed to be
exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth by the Delaware
General Corporation Law.
SECTION 4. Expenses. The Corporation shall advance, prior to the final
disposition of any proceeding, promptly following request therefor, all expenses
incurred by any Director or executive officer in connection with such proceeding
upon receipt of an undertaking by or on behalf of such person to repay said
amounts if it should be determined ultimately that such person is not entitled
to be indemnified under this Article or otherwise.
Notwithstanding the foregoing, unless otherwise determined pursuant to
Section 5 of this Article, no advance shall be made by the Corporation if a
determination is reasonably and promptly made (1) by the Board of Directors by a
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majority vote of a quorum consisting of Directors who were not parties to the
proceeding, or (2) if such quorum is not obtainable, or, even if obtainable, a
quorum of disinterested Directors so directs, by independent legal counsel in a
written opinion, that the facts known to the decision-making party at the time
such determination is made demonstrate clearly and convincingly that such person
acted in bad faith or in a manner that such person did not believe to be in or
not opposed to the best interests of the corporation.
SECTION 5. Enforcement. Without the necessity of entering into an express
contract, all rights to indemnification and advances under this Article shall be
deemed to be contractual rights and to be effective to the same extent and as if
provided for in a contract between the Corporation and the Director or executive
officer who serves in such capacity at any time while this Article and other
relevant provisions of the Delaware General Corporation Law and other applicable
law, if any, are in effect. Any right to indemnification or advances granted by
this Article to a Director or executive officer shall be enforceable by or on
behalf of the person holding such right in any court of competent jurisdiction
if (i) the claim for indemnification or advances is denied, in whole or in part,
or (ii) no disposition of such claim is made within ninety (90) days of request
therefor. The claimant in such enforcement action, if successful in whole or in
part, shall be entitled to be paid also the expense of prosecuting his or her
claim. It shall be a defense to any such action (other than an action brought to
enforce a claim for expenses incurred in connection with any proceeding in
advance of its final disposition when the required undertaking has been tendered
to the corporation) that the claimant has, not met the standards of conduct
which make it permissible under the Delaware General Corporation Law for the
Corporation to indemnify the claimant for the amount claimed but the burden of
proving such defense shall be on the corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual determination by the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not
met the applicable standard of conduct.
SECTION 6. Non-Exclusivity of Rights. The rights conferred on any person by this
Article shall not be exclusive of any other right which such person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or disinterested
Directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding office. The Corporation is
specifically authorized to enter into individual contracts with any or all of
its directors, officers, employees or agents respecting indemnification and
advances, to the fullest extent permitted by the Delaware General Corporation
Law.
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SECTION 7. Survival of Rights. The rights conferred on any person by this
Article shall continue as to a person who has ceased to be a Director, officer,
employee or other agent of the Corporation and shall inure to the benefit of the
heirs, executors and administrators of such a person.
SECTION 8. Insurance. To the fullest extent permitted by the Delaware General
Corporation Law, the Corporation, upon approval by the board of directors, may
purchase insurance on behalf of any person required or permitted to be
indemnified pursuant to this Article.
SECTION 9. Amendments. Any repeal or modification of this Article shall only be
prospective and shall not affect the rights under this Article in effect at the
time of the alleged occurrence of any action or omission to act that is the
cause of any proceeding against any agent of the Corporation.
SECTION 10. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Director and executive officer to
the full extent permitted by any applicable portion of this Article that shall
not have been invalidated, or by any other applicable law.
SECTION 11. Certain Definitions. For the purposes of this article, the
following definitions shall apply:
(a) The term "proceeding" shall be broadly construed and shall
include, without limitation, the investigation, preparation, prosecution,
defense, settlement, arbitration and appeal of, and the giving of testimony in,
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative.
(b) The term "expenses" shall be broadly construed and shall
include, without limitation, court costs, attorneys' fees, witness fees, fines,
amounts paid in settlement or judgment: and any other costs and expenses of any
nature or kind incurred in connection with any proceeding.
(c) The term "the Corporation" shall include, will addition to the
resulting corporation, any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article with respect to the resulting or surviving corporation as he or
she would have with respect to such constituent corporation if its separate
existence had continued.
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(d) References to a "director", officer", "employee, or "agent" of
the Corporation shall include, without limitation, situations where such person
is serving at the request of the Corporation as a director, officer, employee,
trustee or agent of another corporation, partnership, joint venture, trust or
other enterprise.
(e) References to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to any employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a Director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such Director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article.
ARTICLE XII
AMENDMENTS
The By-Laws of the Corporation may be made, altered or repealed at any
meeting of the stockholders by the affirmative vote of the holders of a majority
of the shares of stock issued and outstanding, and entitled to vote thereat,
provided that notice of the general nature of the proposed change in the By-Laws
shall have been given the notice of such meeting of the stockholders. The Board
of Directors shall also have power to make, alter or repeal the By-Laws of the
Corporation by an affirmative vote of a majority of the whole Board at any
regular meeting or special meeting of the Board, whether or not notice of a
proposed change in the By-Laws shall have been given in the notice of such
meeting of the Board, subject always to the power of the stockholders to adopt,
amend or repeal the By-Laws.
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