Exhibit 3.2
BYLAWS
OF
CENTURA SOFTWARE CORPORATION
(a Delaware corporation)
ARTICLE I
CORPORATE OFFICES
1.1 Registered Office. The registered office of the corporation shall
be fixed in the certificate of incorporation of the corporation.
1.2 Other Offices. The board of directors may at any time establish
branch or subordinate offices at any place or places where the
corporation is qualified to do business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 Place of Meetings. Meetings of stockholders shall be held at any
place within or outside the State of Delaware designated by the board
of directors. In the absence of any such designation, stockholders'
meetings shall be held at the principal executive office of the
corporation.
2.2 Annual Meeting. The annual meeting of stockholders shall be held
each year on a date and at a time designated by the board of
directors. In the absence of such designation, the annual meeting of
stockholders shall be held on the fifteenth day of December in each
year at 10:00 a.m. However, if such day falls on a legal holiday,
then the meeting shall be held at the same time and place on the next
succeeding full business day. At the meeting, directors shall be
elected, and any other proper business may be transacted.
2.3 Special Meeting. A special meeting of the stockholders may be
called at any time by the board of directors or by the chairman of the
board or by the president.
2.4 Notice of Stockholders' Meetings. All notices of meetings of
stockholders shall be sent or otherwise given in accordance with
Section 2.7 of these bylaws not less than ten (10) nor more than sixty
(60) days before the date of the meeting. The notice shall specify
the place, date, and hour of the meeting and (i) in the case of a
special meeting, the general nature of the business to be transacted
(no business other than that specified in the notice may be
transacted) or (ii) in the case of the annual meeting, those matters
which the board of directors, at the time of giving the notice,
intends to present for action by the stockholders (but any proper
matter may be presented at the meeting for such action). The notice
of any meeting at which directors are to be elected shall include the
name of any nominee or nominees who, at the time of the notice, the
board intends to present for election.
2.5 Advance Notice of Stockholder Nominees and Stockholder Business.
To be properly brought before an annual meeting, nominations for the
election of director or other business must be (a) specified in the
notice of meeting (or any supplement thereto) given by or at the
direction of the board of directors, (b) otherwise properly brought
before the meeting by or at the direction of the board of directors,
or (c) otherwise properly brought before the meeting by a stockholder.
For such nominations or other business to be considered properly
brought before the meeting by a stockholder such stockholder must have
given timely notice and in proper form of his intent to bring such
business before such meeting. To be timely, such stockholder's notice
must be delivered to or mailed and received by the secretary of the
corporation not less than ninety (90) days prior to the 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 so received not later than the close of business on the tenth
day following the day on which such notice of the date of the meeting
was mailed or such public disclosure was made. To be in proper form,
a stockholder's notice to the secretary shall set forth:
(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 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 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
intended to be nominated, or the matter been proposed, or intended to
be proposed by the board of directors; and
(v) if applicable, the consent of each nominee to serve as 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.
2.6 Manner of Giving Notice; Affidavit of Notice. Written notice of
any meeting of stockholders shall be given either personally or by
first-class mail or by telegraphic or other written communication.
Notices not personally delivered shall be sent charges prepaid and
shall be addressed to the stockholder at the address of that
stockholder appearing on the books of the corporation or given by the
stockholder to the corporation for the purpose of notice. If no such
address appears on the corporation's books or is given, notice shall
be deemed to have been given if sent to that stockholder by mail or
telegraphic or other written communication to the corporation's
principal executive office, or if published at least once in a
newspaper of general circulation in the county where that office is
located. Notice shall be deemed to have been given at the time when
delivered personally or deposited in the mail or sent by telegram or
other means of written communication.
If any notice addressed to a stockholder at the address of that
stockholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that
the United States Postal Service is unable to deliver the notice to the
stockholder at that address, then all future notices or reports shall be
deemed to have been duly given without further mailing if the same shall
be available to the stockholder on written demand of the stockholder at
the principal executive office of the corporation for a period of one (1)
year from the date of the giving of the notice.
An affidavit of the mailing or other means of giving any notice of
any stockholders' meeting, executed by the secretary, assistant secretary
or any transfer agent of the corporation giving the notice, shall be
prima facie evidence of the giving of such notice.
2.7 Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business, except as otherwise
provided by statute or by the certificate of incorporation. If,
however, such quorum is not present or represented at any meeting of
the stockholders, then either (i) the chairman of the meeting or
(ii) the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting in
accordance with Section 2.8 of these bylaws.
When a quorum is present at any meeting, the vote of the holders of
a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which, by express provision of
the statutes or of the certificate of incorporation, a different vote is
required, in which case such express provision shall govern and control
the decision of the question.
If a quorum be initially present, the stockholders may continue to
transact business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum, if any action taken is
approved by a majority of the stockholders required to initially
constitute a quorum.
2.8 Adjourned Meeting; Notice. When a meeting is adjourned to another
time and place, unless these bylaws otherwise require, 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. At the
adjourned meeting the corporation may transact any business that might
have been transacted at the original meeting. If the adjournment is
for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the
adjourned meeting shall be given to each stockholder of record
entitled to vote at the meeting.
2.9 Voting. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of
Section 2.12 of these bylaws, subject to the provisions of
Sections 217 and 218 of the General Corporation Law of Delaware
(relating to voting rights of fiduciaries, pledgors and joint owners,
and to voting trusts and other voting agreements).
Except as may otherwise be provided in the certificate of
incorporation, each stockholder shall be entitled to one vote for each
share of capital stock held by such stockholder. No stockholder will be
permitted to cumulate votes at any election of directors.
2.10 Validation of Meetings; Waiver of Notice; Consent. The
transactions of any meeting of stockholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as
though they had been taken at a meeting duly held after regular call
and notice, if a quorum be present either in person or by proxy, and
if, either before or after the meeting, each person entitled to vote,
who was not present in person or by proxy, signs a written waiver of
notice or a consent to the holding of the meeting or an approval of
the minutes thereof. The waiver of notice or consent or approval need
not specify either the business to be transacted or the purpose of any
annual or special meeting of stockholders. All such waivers,
consents, and approvals shall be filed with the corporate records or
made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver
of notice of and presence at that meeting, except when the person objects
at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. Attendance at a
meeting is not a waiver of any right to object to the consideration of
matters required by law to be included in the notice of the meeting but
not so included, if that objection is expressly made at the meeting.
2.11 Stockholder Action by Written Consent Without a Meeting. The
stockholders of the corporation may not take action by written consent
without a meeting. Any such actions must be taken at a duly called
annual or special meeting.
2.12 Record Date for Stockholder Notice; Voting; Giving Consents. For
purposes of determining the stockholders entitled to notice of any
meeting or to vote thereat, the board of directors may fix, in
advance, a record date, which shall not be more than sixty (60) days
nor less than ten (10) days before the date of any such meeting, and
in such event only stockholders of record on the date so fixed are
entitled to notice and to vote, notwithstanding any transfer of any
shares on the books of the corporation after the record date.
If the board of directors does not so fix a record date, 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 business
day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the business day next preceding the
day on which the meeting is held.
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 unless the board of directors fixes a new record date for the
adjourned meeting, but the board of directors shall fix a new record date
if the meeting is adjourned for more than thirty (30) days from the date
set for the original meeting.
The record date for any other purpose shall be as provided in
Section 8.1 of these bylaws.
2.13 Proxies. Every person entitled to vote for directors, or on any
other matter, shall have the right to do so either in person or by one
or more agents authorized by a written proxy signed by the person and
filed with the secretary of the corporation, but no such proxy shall
be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period. A proxy shall be deemed signed if
the stockholder's name is placed on the proxy (whether by manual
signature, typewriting, telegraphic transmission or otherwise) by the
stockholder or the stockholder's attorney-in-fact. The revocability
of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of Section 212(c) of the General
Corporation Law of Delaware.
2.14 Inspectors of Election. Before any meeting of stockholders, the
board of directors may appoint an inspector or inspectors of election
to act at the meeting or its adjournment. If no inspector of election
is so appointed, then the chairman of the meeting may, and on the
request of any stockholder or a stockholder's proxy shall, appoint an
inspector or inspectors of election to act at the meeting. The number
of inspectors shall be either one (1) or three (3). If inspectors are
appointed at a meeting pursuant to the request of one (1) or more
stockholders or proxies, then the holders of a majority of shares or
their proxies present at the meeting shall determine whether one (1)
or three (3) inspectors are to be appointed. If any person appointed
as inspector fails to appear or fails or refuses to act, then the
chairman of the meeting may, and upon the request of any stockholder
or a stockholder's proxy shall, appoint a person to fill that vacancy.
Such inspectors shall:
(a) determine the number of shares outstanding and the voting power of
each, the number of shares represented at the meeting, the existence
of a quorum, and the authenticity, validity, and effect of proxies;
(b) receive votes, ballots or consents;
(c) hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) count and tabulate all votes or consents;
(e) determine when the polls shall close;
(f) determine the result; and
(g) do any other acts that may be proper to conduct the election or
vote with fairness to all stockholders.
2.15 Organization. The president, or in the absence of the president,
the chairman of the board, shall call the meeting of the stockholders
to order, and shall act as chairman of the meeting. In the absence of
the president, the chairman of the board, and all of the vice
presidents, the stockholders shall appoint a chairman for such
meeting. The chairman of any meeting of stockholders shall determine
the order of business and the procedures at the meeting, including
such matters as the regulation of the manner of voting and the conduct
of business. The secretary of the corporation shall act as secretary
of all meetings of the stockholders, but in the absence of the
secretary at any meeting of the stockholders, the presiding officer
may appoint any person to act as secretary of the meeting.
2.16 List of Stockholders Entitled to Vote. The officer who has charge
of the stock ledger of the corporation shall prepare and make, at
least ten (10) days before every meeting of stockholders, a list of
the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and
the number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours, for a
period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list
shall also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder
who is present. Such list shall presumptively determine the identity
of the stockholders entitled to vote at the meeting and the number of
shares held by each of them.
ARTICLE III
DIRECTORS
3.1 Powers. Subject to the provisions of the General Corporation Law
of Delaware and to any limitations in the certificate of incorporation
or these bylaws relating to action required to be approved by the
stockholders or by the outstanding shares, the business and affairs of
the corporation shall be managed and all corporate powers shall be
exercised by or under the direction of the board of directors.
Each director shall exercise such powers and otherwise perform such
duties in good faith, in the manner such director believes to be in the
best interests of the corporation, and with such care, including
reasonable inquiry, as an ordinarily prudent person in a like position
would use under similar circumstances.
3.2 Number of Directors. The authorized number of directors shall be
not less than five (5) nor more than nine (9). The exact number of
directors shall be seven (7) until changed, within the limits
specified above, by a bylaw amending this Section 3.2, duly adopted by
the board of directors or by the stockholders. The indefinite number
of directors may be changed, or a definite number may be fixed without
provision for an indefinite number, by an amendment to this bylaw duly
adopted by the vote or written consent of the holders of a majority of
the stock issued and outstanding and entitled to vote, or by a duly
adopted amendment to the certificate of incorporation.
No reduction of the authorized number of directors shall have the
effect of removing any director before that director's term of office
expires.
3.3 Election and Term of Office of Directors. Except as provided in
Section 3.4 of these bylaws, directors shall be elected at each annual
meeting of stockholders to hold office until the next annual meeting.
Each director, including a director elected or appointed to fill a
vacancy, shall hold office until the expiration of the term for which
elected and until a successor has been elected and qualified.
3.4 Resignation and Vacancies. Any director may resign effective on
giving written notice to the chairman of the board, the president, the
secretary or the board of directors, unless the notice specifies a
later time for that resignation to become effective.
If the resignation of a director is effective at a future time, the
board of directors may elect a successor to take office when the
resignation becomes effective. Vacancies in the board of directors may
be filled by a majority of the remaining directors, even if less than a
quorum, or by a sole remaining director; however, a vacancy created by
the removal of a director by the vote of the stockholders or by court
order may be filled only by the affirmative vote of a majority of the
shares represented and voting at a duly held meeting at which a quorum is
present (which shares voting affirmatively also constitute a majority of
the required quorum). Each director so elected shall hold office until
the next annual meeting of the stockholders and until a successor has
been elected and qualified.
Unless otherwise provided in the certificate of incorporation or
these bylaws:
(i) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors elected by all of the
stockholders having the right to vote as a single class may be filled
by a majority of the directors then in office, although less than a
quorum, or by a sole remaining director:
(ii) Whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions
of the certificate of incorporation, vacancies and newly created
directorships of such class or classes or series may be filled by a
majority of the directors elected by such class or classes or series
thereof then in office, or by a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause,
the corporation should have no directors in office, then any officer or
any stockholder or an executor, administrator, trustee or guardian of a
stockholder, or other fiduciary entrusted with like responsibility for
the person or estate of a stockholder, may call a special meeting of
stockholders in accordance with the provisions of the certificate of
incorporation or these bylaws, or may apply to the Court of Chancery for
a decree summarily ordering an election as provided in Section 211 of the
General Corporation Law of Delaware.
If, at the time of filling any vacancy or any newly created
directorship, the directors then in office constitute less than a
majority of the whole board (as constituted immediately prior to any such
increase), then the Court of Chancery may, upon application of any
stockholder or stockholders holding at least ten percent (10%) of the
total number of the shares at the time outstanding having the right to
vote for such directors, summarily order an election to be held to fill
any such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office as aforesaid, which
election shall be governed by the provisions of Section 211 of the
General Corporation Law of Delaware as far as applicable.
3.5 Removal of Directors. Unless otherwise restricted by statute, by
the certificate of incorporation or by these bylaws, any director or
the entire board of directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote at an
election of directors.
3.6 Place of Meetings; Meetings by Telephone. Regular meetings of the
board of directors may be held at any place within or outside the
State of Delaware that has been designated from time to time by
resolution of the board. In the absence of such a designation,
regular meetings shall be held at the principal executive office of
the corporation. Special meetings of the board may be held at any
place within or outside the State of Delaware that has been designated
in the notice of the meeting or, if not stated in the notice or if
there is no notice, at the principal executive office of the
corporation.
Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another; and all such directors
shall be deemed to be present in person at the meeting.
3.7 First Meetings. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by
the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in
order legally to constitute the meeting, provided a quorum shall be
present. In the event of the failure of the stockholders to fix the
time or place of such first meeting of the newly elected board of
directors, or in the event such meeting is not held at the time and
place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter
provided for special meetings of the board of directors, or as shall
be specified in a written waiver signed by all of the directors.
3.8 Regular Meetings. Regular meetings of the board of directors may
be held without notice at such time as shall from time to time be
determined by the board of directors. If any regular meeting day
shall fall on a legal holiday, then the meeting shall be held at the
same time and place on the next succeeding full business day.
3.9 Special Meetings; Notice. Special meetings of the board of
directors for any purpose or purposes may be called at any time by the
chairman of the board, the president, any vice president, the
secretary or any two directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail,
reputable courier service, or telegram, charges prepaid, addressed to
each director at that director's address as it is shown on the records of
the corporation. If the notice is mailed, it shall be deposited in the
United States mail at least four (4) days before the time of the holding
of the meeting. If the notice is delivered personally, by reputable
courier service, or by telephone or telegram, it shall be delivered
personally, by courier, or by telephone or to the telegraph company at
least forty-eight (48) hours before the time of the holding of the
meeting. Any oral notice given personally or by telephone may be
communicated either to the director or to a person at the office of the
director who the person giving the notice has reason to believe will
promptly communicate it to the director. The notice need not specify the
purpose or the place of the meeting, if the meeting is to be held at the
principal executive office of the corporation.
3.10 Quorum. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business, except to adjourn
as provided in Section 3.19 of these bylaws. Every act or decision
done or made by a majority of the directors present at a duly held
meeting at which a quorum is present shall be regarded as the act of
the board of directors, subject to the provisions of the certificate
of incorporation and applicable law.
A meeting at which a quorum is initially present may continue to
transact business notwithstanding the withdrawal of directors, if any
action taken is approved by at least a majority of the required quorum
for that meeting.
3.11 Waiver of Notice. Notice of a meeting need not be given to any
director (i) who signs a waiver of notice or a consent to holding the
meeting or an approval of the minutes thereof, whether before or after
the meeting, or (ii) who attends the meeting without protesting, prior
thereto or at its commencement, the lack of notice to such directors.
All such waivers, consents, and approvals shall be filed with the
corporate records or made part of the minutes of the meeting. A
waiver of notice need not specify the purpose of any regular or
special meeting of the board of directors.
3.12 Adjournment. A majority of the directors present, whether or not
constituting a quorum, may adjourn any meeting to another time and
place.
3.13 Notice of Adjournment. Notice of the time and place of holding an
adjourned meeting need not be given unless the meeting is adjourned
for more than twenty-four (24) hours. If the meeting is adjourned for
more than twenty-four (24) hours, then notice of the time and place of
the adjourned meeting shall be given before the adjourned meeting
takes place, in the manner specified in Section 3.9 of these bylaws,
to the directors who were not present at the time of the adjournment.
3.14 Board Action by Written Consent Without a Meeting. Any action
required or permitted to be taken by the board of directors may be
taken without a meeting, provided that all members of the board
individually or collectively consent in writing to that action. Such
action by written consent shall have the same force and effect as a
unanimous vote of the board of directors. Such written consent and
any counterparts thereof shall be filed with the minutes of the
proceedings of the board of directors.
3.15 Fees and Compensation of Directors. Directors and members of
committees may receive such compensation, if any, for their services
and such reimbursement of expenses as may be fixed or determined by
resolution of the board of directors. This Section 3.15 shall not be
construed to preclude any director from serving the corporation in any
other capacity as an officer, agent, employee or otherwise and
receiving compensation for those services.
3.16 Approval of Loans to Officers. The corporation may lend money to,
or guarantee any obligation of, or otherwise assist any officer or
other employee of the corporation or of its subsidiary, including any
officer or employee who is a director of the corporation or its
subsidiary, whenever, in the judgment of the directors, such loan,
guaranty or assistance may reasonably be expected to benefit the
corporation. The loan, guaranty or other assistance may be with or
without interest and may be unsecured, or secured in such manner as
the board of directors shall approve, including, without limitation, a
pledge of shares of stock of the corporation. Nothing contained in
this section shall be deemed to deny, limit or restrict the powers of
guaranty or warranty of the corporation at common law or under any
statute.
3.17 Sole Director Provided by Certificate of Incorporation. In the
event only one (1) director is required by these bylaws or the
certificate of incorporation, then any reference herein to notices,
waivers, consents, meetings or other actions by a majority or quorum
of the directors shall be deemed to refer to such notice, waiver,
etc., by such sole director, who shall have all the rights and duties
and shall be entitled to exercise all of the powers and shall assume
all the responsibilities otherwise herein described as given to the
board of directors.
3.18 Advisory Directors. The board of directors from time to time may
elect one or more persons to be advisory directors who shall not by
such appointment be members of the board of directors. Advisory
directors shall be available from time to time to perform special
assignments specified by the president, to attend meetings of the
board of directors upon invitation and to furnish consultation to the
board of directors. The period during which the title shall be held
may be prescribed by the board of directors. If no period is
prescribed, the title shall be held at the pleasure of the board of
directors.
3.19 Super Majority Vote of Directors. A two-thirds super majority vote
of directors shall be required to approve any of the following
actions:
(a) consolidation or merger of the corporation with or into any other
corporation in which securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from the
persons holding those securities immediately prior to such transaction
(other than a consolidation or merger in which the surviving entity is
the corporation or one of its wholly-owned subsidiaries) or transfer
or sale of all or substantially all of the assets of the corporation;
or
(b) an increase in the corporation's secured indebtedness to an
aggregate amount in excess of $15 million.
ARTICLE IV
COMMITTEES
4.1 Committees of Directors. The board of directors may, by resolution
adopted by a majority of the authorized number of directors, designate
one (1) or more committees, each consisting of one or more directors,
to serve at the pleasure of the board. The board may designate one
(1) or more directors as alternate members of any committee, who may
replace any absent member at any meeting of the committee. The
appointment of members or alternate members of a committee requires
the vote of a majority of the authorized number of directors. Any
committee, to the extent provided in the resolution of the board,
shall have all the authority of the board, but no such committee shall
have the power or authority to (i) amend the certificate of
incorporation (except that a committee may, to the extent authorized
in the resolution or resolutions providing for the issuance of shares
of stock adopted by the board of directors as provided in
Section 151(a) of the General Corporation Law of Delaware, fix any of
the preferences or rights of such shares relating to dividends,
redemption, dissolution, any distribution of assets of the corporation
or the conversion into, or the exchange of such shares for, shares of
any other class or classes or any other series of the same or any
other class or classes of stock of the corporation), (ii) adopt an
agreement of merger or consolidation under Sections 251 or 252 of the
General Corporation Law of Delaware, (iii) recommend to the
stockholders the sale, lease or exchange of all or substantially all
of the corporation's property and assets, (iv) recommend to the
stockholders a dissolution of the corporation or a revocation of a
dissolution, or (v) amend the bylaws of the corporation; and, unless
the board resolution establishing the committee, the bylaws or the
certificate of incorporation expressly so provide, no such committee
shall have the power or authority to declare a dividend, to authorize
the issuance of stock, or to adopt a certificate of ownership and
merger pursuant to Section 253 of the General Corporation Law of
Delaware.
4.2 Meetings and Actions of Committees. Meetings and actions of
committees shall be governed by, and held and taken in accordance
with, the provisions of Article III of these bylaws, Section 3.6
(place of meetings; meetings by telephone), Section 3.8 (regular
meetings), Section 3.9 (special meetings; notice), Section 3.10
(quorum), Section 3.11 (waiver of notice), Section 3.12 (adjournment),
Section 3.13 (notice of adjournment), and Section 3.14 (board action
by written consent without meeting), with such changes in the context
of those bylaws as are necessary to substitute the committee and its
members for the board of directors and its members; provided, however,
that the time of regular meetings of committees may be determined
either by resolution of the board of directors or by resolution of the
committee, that special meetings of committees may also be called by
resolution of the board of directors, and that notice of special
meetings of committees shall also be given to all alternate members,
who shall have the right to attend all meetings of the committee. The
board of directors may adopt rules for the government of any committee
not inconsistent with the provisions of these bylaws.
4.3 Committee Minutes. Each committee shall keep regular minutes of
its meetings and report the same to the board of directors when
required.
ARTICLE V
OFFICERS
5.1 Officers. The Corporate Officers of the corporation shall be a
president, a secretary and a chief financial officer. The corporation
may also have, at the discretion of the board of directors, a chairman
of the board, one or more vice presidents, one or more assistant
secretaries, one or more assistant treasurers, and such other officers
as may be appointed in accordance with the provisions of Section 5.3
of these bylaws. Any number of offices may be held by the same
person. In addition to the Corporate Officers of the corporation
described above, there may also be such Administrative Officers of the
corporation as may be designated and appointed from time to time by
the president of the corporation in accordance with the provisions of
Section 5.12 of these bylaws.
5.2 Election of Officers. The Corporate Officers of the corporation,
except such officers as may be appointed in accordance with the
provisions of Section 5.3 or Section 5.5 of these bylaws, shall be
chosen by the board of directors, subject to the rights, if any, of an
officer under any contract of employment.
5.3 Subordinate Officers; Etc. The board of directors may appoint, or
may empower the president to appoint, such other Corporate Officers as
the business of the corporation may require, each of whom shall hold
office for such period, have such authority, and perform such duties
as are provided in these bylaws or as the board of directors may from
time to time determine.
The president may from time to time designate and appoint
Administrative Officers of the corporation in accordance with the
provisions of Section 5.12 of these bylaws.
5.4 Removal and Resignation of Officers. Subject to the rights, if
any, of a Corporate Officer under any contract of employment, any
Corporate Officer may be removed, either with or without cause, by the
board of directors at any regular or special meeting of the board or,
except in case of a Corporate Officer chosen by the board of
directors, by any Corporate Officer upon whom such power of removal
may be conferred by the board of directors. Any Corporate Officer may
resign at any time by giving written notice to the corporation.
Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless
otherwise specified in that notice, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without
prejudice to the rights, if any, of the corporation under any contract to
which the Corporate Officer is a party. Any Administrative Officer
designated and appointed by the president may be removed, either with or
without cause, at any time by the president. Any Administrative Officer
may resign at any time by giving written notice to the president or to
the secretary of the corporation.
5.5 Vacancies in Offices. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall be
filled in the manner prescribed in these bylaws for regular
appointments to that office.
5.6 Chairman of the Board. The chairman of the board, if such an
officer be elected, shall, if present, preside at meetings of the
board of directors and exercise and perform such other powers and
duties as may from time to time be assigned to him by the board of
directors or as may be prescribed by these bylaws. The chairman of
the board shall also be the chief executive officer of the corporation
and shall have the powers and duties prescribed in Section 5.7 of
these bylaws.
5.7 President. Subject to such supervisory powers, if any, as may be
given by the board of directors to the chairman of the board, if there
be such an officer, the president shall be the chief executive officer
of the corporation and shall, subject to the control of the board of
directors, have general supervision, direction, and control of the
business and the officers of the corporation. He or she shall preside
at all meetings of the stockholders and, in the absence or
nonexistence of a chairman of the board, at all meetings of the board
of directors. He or she shall have the general powers and duties of
management usually vested in the office of president of a corporation,
and shall have such other powers and duties as may be prescribed by
the board of directors or these bylaws.
5.8 Vice Presidents. In the absence or disability of the president,
the vice presidents, if any, in order of their rank as fixed by the
board of directors or, if not ranked, a vice president designated by
the board of directors, shall perform all the duties of the president
and when so acting shall have all the powers of, and be subject to all
the restrictions upon, the president. The vice presidents shall have
such other powers and perform such other duties as from time to time
may be prescribed for them respectively by the board of directors,
these bylaws, the president or the chairman of the board.
5.9 Secretary. The secretary shall keep or cause to be kept, at the
principal executive office of the corporation or such other place as
the board of directors may direct, a book of minutes of all meetings
and actions of the board of directors, committees of directors and
stockholders. The minutes shall show the time and place of each
meeting, whether regular or special (and, if special, how authorized
and the notice given), the names of those present at directors'
meetings or committee meetings, the number of shares present or
represented at stockholders' meetings, and the proceedings thereof.
The secretary shall keep, or cause to be kept, at the principal
executive office of the corporation or at the office of the corporation's
transfer agent or registrar, as determined by resolution of the board of
directors, a share register, or a duplicate share register, showing the
names of all stockholders and their addresses, the number and classes of
shares held by each, the number and date of certificates evidencing such
shares, and the number and date of cancellation of every certificate
surrendered for cancellation.
The secretary shall give, or cause to be given, notice of all
meetings of the stockholders and of the board of directors required to be
given by law or by these bylaws. He or she shall keep the seal of the
corporation, if one is adopted, in safe custody and shall have such other
powers and perform such other duties as may be prescribed by the board of
directors or by these bylaws.
5.10 Chief Financial Officer. The chief financial officer shall keep
and maintain, or cause to be kept and maintained, adequate and correct
books and records of accounts of the properties and business
transactions of the corporation, including accounts of its assets,
liabilities, receipts, disbursements, gains, losses, capital, retained
earnings and shares. The books of account shall at all reasonable
times be open to inspection by any director.
The chief financial officer shall deposit all money and other
valuables in the name and to the credit of the corporation with such
depositories as may be designated by the board of directors. He or she
shall disburse the funds of the corporation as may be ordered by the
board of directors, shall render to the president and directors, whenever
they request it, an account of all of his or her transactions as chief
financial officer and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be
prescribed by the board of directors or these bylaws.
5.11 Assistant Secretary. The assistant secretary, or, if there is more
than one, the assistant secretaries in the order determined by the
stockholders or board of directors (or if there be no such
determination, then in the order of their election) shall, in the
absence of the secretary or in the event of his or her inability or
refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other
powers as the board of directors or the stockholders may from time to
time prescribe.
5.12 Administrative Officers. In addition to the Corporate Officers of
the corporation as provided in Section 5.1 of these bylaws and such
subordinate Corporate Officers as may be appointed in accordance with
Section 53 of these bylaws, there may also be such Administrative
Officers of the corporation as may be designated and appointed from
time to time by the president of the corporation. Administrative
Officers shall perform such duties as from time to time may be
determined by the president or the board of directors in order to
assist the Corporate Officers in the furtherance of their duties. In
the performance of such duties, however, such Administrative Officers
shall have limited authority to act on behalf of the corporation as
the board of directors shall establish, including but not limited to
limitations on the dollar amount and on the scope of agreements or
commitments that may be made by such Administrative Officers on behalf
of the corporation, which limitations may not be exceeded by such
individuals or altered by the president without further approval by
the board of directors.
5.13 Authority and Duties of Officers. In addition to the foregoing
authority and duties, all officers of the corporation shall
respectively have such authority and perform such duties in the
management of the business of the corporation as may be designated
from time to time by the board of directors or the stockholders.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND OTHER AGENTS
6.1 Indemnification of Directors and Officers. The corporation shall,
to the maximum extent and in the manner permitted by the General
Corporation Law of Delaware, indemnify each of its directors and
officers against expenses (including attorneys' fees), judgments,
fines, settlements and other amounts actually and reasonably incurred
in connection with any proceeding arising by reason of the fact that
such person is or was an agent of the corporation. For purposes of
this Section 6.1, a "director" or "officer" of the corporation
includes any person (i) who is or was a director or officer of the
corporation, (ii) who is or was serving at the request of the
corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who
was a director or officer of a corporation which was a predecessor
corporation of the corporation or of another enterprise at the request
of such predecessor corporation.
6.2 Indemnification of Others. The corporation shall have the power,
to the maximum extent and in the manner permitted by the General
Corporation Law of Delaware, to indemnify each of its employees and
agents (other than directors and officers) against expenses (including
attorneys' Fees), judgments, fines, settlements and other amounts
actually and reasonably incurred in connection with any proceeding
arising by reason of the fact that such person is or was an agent of
the corporation. For purposes of this Section 6.9, an "employee" or
"agent" of the corporation (other than a director or officer)
includes any person (i) who is or was an employee or agent of the
corporation, (ii) who is or was serving at the request of the
corporation as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or (iii) who
was an employee or agent of a corporation which was a predecessor
corporation of the corporation or of another enterprise at the request
of such predecessor corporation.
6.3 Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him or her and incurred by him
or her in any such capacity, or arising out of his or her status as
such, whether or not the corporation would have the power to indemnify
him or her against such liability under the provisions of the General
Corporation Law of Delaware.
ARTICLE VII
RECORDS AND REPORTS
7.1 Maintenance and Inspection of Records. The corporation shall,
either at its principal executive office or at such place or places as
designated by the board of directors, keep a record of its
stockholders listing their names and addresses and the number and
class of shares held by each stockholder, a copy of these bylaws as
amended to date, accounting books and other records of its business
and properties.
Any stockholder of record, in person or by attorney or other agent,
shall, upon written demand under oath stating the purpose thereof, have
the right during the usual hours for business to inspect for any proper
purpose the corporation's stock ledger, a list of its stockholders, and
its other books and records and to make copies or extracts therefrom. A
proper purpose shall mean a purpose reasonably related to such person's
interest as a stockholder. In every instance where an attorney or other
agent is the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing
that authorizes the attorney or other agent to so act on behalf of the
stockholder. The demand under oath shall be directed to the corporation
at its registered office in Delaware or at its principal place of
business.
7.2 Inspection by Directors. Any director shall have the right to
examine the corporation's stock ledger, a list of its stockholders and
its other books and records for a purpose reasonably related to his or
her position as a director. The Court of Chancery is hereby vested
with the exclusive jurisdiction to determine whether a director is
entitled to the inspection sought. The Court may summarily order the
corporation to permit the director to inspect any and all books and
records, the stock ledger, and the stock list and to make copies or
extracts therefrom. The Court may, in its discretion, prescribe any
limitations or conditions with reference to the inspection, or award
such other and further relief as the Court may deem just and proper.
7.3 Annual Statement to Stockholders. The board of directors shall
present at each annual meeting, and at any special meeting of the
stockholders when called for by vote of the stockholders, a full and
clear statement of the business and condition of the corporation.
7.4 Representation of Shares of Other Corporations. The chairman of
the board, the president, any vice president, the chief financial
officer, the secretary or assistant secretary of this corporation, or
any other person authorized by the board of directors or the president
or a vice president, is authorized to vote, represent, and exercise on
behalf of this corporation all rights incident to any and all shares
of any other corporation or corporations standing in the name of this
corporation. The authority herein granted may be exercised either by
such person directly or by any other person authorized to do so by
proxy or power of attorney duly executed by such person having the
authority.
7.5 Certification and Inspection of Bylaws. The original or a copy of
these bylaws, as amended or otherwise altered to date, certified by
the secretary, shall be kept at the corporation's principal executive
office and shall be open to inspection by the stockholders of the
corporation, at all reasonable times during office hours.
ARTICLE VIII
GENERAL MATTERS
8.1 Record Date for Purposes Other than Notice and Voting. For
purposes of determining the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or
the stockholders entitled to exercise any rights in respect of any
other lawful action, the board of directors may fix, in advance, a
record date, which shall not be more than sixty (60) days before any
such action. In that case, only stockholders of record at the close
of business on the date so fixed are entitled to receive the dividend,
distribution or allotment of rights, or to exercise such rights, as
the case may be, notwithstanding any transfer of any shares on the
books of the corporation after the record date so fixed, except as
otherwise provided by law.
If the board of directors does not so fix a record date, then the
record date for determining stockholders for any such purpose shall be at
the close of business on the day on which the board of directors adopts
the applicable resolution or the sixtieth (60th) day before the date of
that action, whichever is later.
8.2 Checks; Drafts; Evidences of Indebtedness. From time to time, the
board of directors shall determine by resolution which person or
persons may sign or endorse all checks, drafts, other orders for
payment of money, notes or other evidences of indebtedness that are
issued in the name of or payable to the corporation, and only the
persons so authorized shall sign or endorse those instruments.
8.3 Corporate Contracts and Instruments; How Executed. The board of
directors, except as otherwise provided in these bylaws, may authorize
any officer or officers, or agent or agents, to enter into any
contract or execute any instrument in the name of and on behalf of the
corporation; such authority may be general or confined to specific
instances. Unless so authorized or ratified by the board of directors
or within the agency power of an officer, no officer, agent or
employee shall have any power or authority to bind the corporation by
any contract or engagement or to pledge its credit or to render it
liable for any purpose or for any amount.
8.4 Stock Certificates; Transfer; Partly Paid Shares. The shares of
the corporation shall be represented by certificates, provided that
the board of directors of the corporation may provide by resolution or
resolutions that some or all of any or all classes or series of its
stock shall be uncertificated shares. Any such resolution shall not
apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Notwithstanding the adoption of such
a resolution by the board of directors, every holder of stock
represented by certificates and upon request every holder of
uncertificated shares shall be entitled to have a certificate signed
by, or in the name of the corporation by, the chairman of the board of
directors or the president or a vice-president, and by the chief
financial officer, the secretary or an assistant secretary of such
corporation representing the number of shares registered in
certificate form. Any or all of the signatures on the certificate may
be a facsimile. In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a
certificate has ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation
with the same effect as if he or she were such officer, transfer agent
or registrar at the date of issue.
Certificates for shares shall be of such form and device as the
board of directors may designate and shall state the name of the record
holder of the shares represented thereby; its number; date of issuance;
the number of shares for which it is issued; a statement summary or
reference to the rights, privileges, preferences and restrictions, if
any; a statement or summary as to the redemption or conversion, if any; a
statement or summary of liens or restrictions upon transfer or voting, if
any; if the shares by assessable or, if assessments are collectible by
personal action, a plain statement of such facts.
Upon surrender to the secretary or transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it
shall be the duty of the corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the
transaction upon its books.
The corporation may issue the whole or any part of its shares as
partly paid and subject to call for the remainder of the consideration to
be paid therefor. Upon the face or back of each stock certificate issued
to represent any such partly paid shares, upon the books and records of
the corporation in the case of uncertificated partly paid shares, the
total amount of the consideration to be paid therefor and the amount paid
thereon shall be stated. Upon the declaration of any dividend on fully
paid shares, the corporation shall declare a dividend upon partly paid
shares of the same class, but only upon the basis of the percentage of
the consideration actually paid thereon.
8.5 Special Designation on Certificates. If the corporation is
authorized to issue more than one class of stock or more than one
series of any class, then the powers, the designations, the
preferences, and the relative, participating, optional or other
special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or
rights shall be set forth in full or summarized on the face or back of
the certificate that the corporation shall issue to represent such
class or series of stock; provided, however, that, except as otherwise
provided in Section 202 of the General Corporation Law of Delaware, in
lieu of the foregoing requirements there may be set forth on the face
or back of the certificate that the corporation shall issue to
represent such class or series of stock a statement that the
corporation will furnish without charge to each stockholder who so
requests the powers, the designations, the preferences, and the
relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights.
8.6 Lost Certificates. Except as provided in this Section 8.6, no new
certificates for shares shall be issued to replace a previously issued
certificate unless the latter is surrendered to the corporation or its
duly authorized transfer agent and canceled at the same time. The
board of directors may, in case any share certificate or certificate
for any other security is lost, stolen or destroyed, authorize the
issuance of replacement certificates on such terms and conditions as
the board may require; the board may require indemnification of the
corporation secured by a bond or other adequate security sufficient to
protect the corporation against any claim that may be made against it,
including any expense or liability, on account of the alleged loss,
theft or destruction of the certificate or the issuance of the
replacement certificate.
8.7 Transfer Agents and Registrars. The board of directors may appoint
one or more transfer agents or transfer clerks, and one or more
registrars, which shall be an incorporated bank or trust company-
either domestic or foreign, who shall be appointed at such times and
places as the requirements of the corporation may necessitate and the
board of directors may designate.
8.8 Legend Condition. In the event any shares of this corporation are
issued pursuant to a permit or exemption therefrom requiring the
imposition of a legend condition the person or persons issuing or
transferring said shares shall make sure said legend appears on the
certificate and on the stub relating thereto in the stock record book
and shall not be required to transfer any shares free of such legend
unless an amendment to such permit or a new permit be first issued so
authorizing such a deletion.
8.9 Subsidiary Corporations. Shares of this corporation owned by a
subsidiary shall not be entitled to vote on any matter. A subsidiary
for these purposes is defined as a corporation, the shares of which
possessing more than twenty-five percent (25%) of the total combined
voting power of all classes of shares entitled to vote, are owned
directly or indirectly through one or more subsidiaries.
8.10 Construction; Definitions. Unless the context requires otherwise,
the general provisions, rules of construction, and definitions in the
General Corporation Law of Delaware shall govern the construction of
these bylaws. Without limiting the generality of this provision, the
singular number includes the plural, the plural number includes the
singular, and the term "person" includes both a corporation and a
natural person.
ARTICLE IX
AMENDMENTS
The original or other bylaws of the corporation may be adopted,
amended or repealed by the stockholders entitled to vote; provided,
however, that the corporation may, in its certificate of incorporation,
confer the power to adopt, amend or repeal bylaws upon the directors.
The fact that such power has been so conferred upon the directors shall
not divest the stockholders of the power, nor limit their power to adopt,
amend or repeal bylaws.
Notwithstanding any other provision of these bylaws or any
provision of law which might otherwise permit a lesser vote or no vote,
but in addition to any affirmative vote of the holders of the capital
stock required by law or by these bylaws, the affirmative vote of two-
thirds (2/3) of the then-outstanding shares of the corporation entitled
to vote shall be required to alter, amend or repeal Article II,
Section 2.11 or this Article IX hereof or any provision thereof, or to
add or amend any other bylaw in order to change or nullify the effect of
such provisions, unless such amendment shall be approved by a majority of
the directors of the corporation not affiliated or associated with any
person or entity holding (or which has announced an intent to obtain) 10%
or more of the voting power of the corporation's outstanding capital
stock.
Whenever an amendment or new bylaw is adopted, it shall be copied
in the book of bylaws with the original bylaws, in the appropriate place.
If any bylaw is repealed, the fact of repeal with the date of the meeting
at which the repeal was enacted or written consent was filed shall be
stated in said book.
ARTICLE X
DISSOLUTION
If it should be deemed advisable in the judgment of the board of
directors of the corporation that the corporation should be dissolved,
the board, after the adoption of a resolution to that effect by a
majority of the whole board at any meeting called for that purpose, shall
cause notice to be mailed to each stockholder entitled to vote thereon of
the adoption of the resolution and of a meeting of stockholders to take
action upon the resolution.
At the meeting a vote shall be taken for and against the proposed
dissolution. If a majority of the outstanding stock of the corporation
entitled to vote thereon votes for the proposed dissolution, then a
certificate stating that the dissolution has been authorized in
accordance with the provisions of Section 275 of the General Corporation
Law of Delaware and setting forth the names and residences of the
directors and officers shall be executed, acknowledged, and filed and
shall become effective in accordance with Section 103 of the General
Corporation Law of Delaware. Upon such certificate's becoming effective
in accordance with Section 103 of the General Corporation Law of
Delaware, the corporation shall be dissolved.
Whenever all the stockholders entitled to vote on a dissolution
consent in writing, either in person or by duly authorized attorney, to a
dissolution, no meeting of directors or stockholders shall be necessary.
The consent shall be filed and shall become effective in accordance with
Section 103 of the General Corporation Law of Delaware. Upon such
consent becoming effective in accordance with Section 103 of the General
Corporation Law of Delaware, the corporation shall be dissolved. If the
consent is signed by an attorney, then the original power of attorney or
s photocopy thereof shall be attached to and filed with the consent. The
consent filed with the Secretary of State shall have attached to it the
affidavit of the secretary or some other officer of the corporation
stating that the consent has been signed by or on behalf of all the
stockholders entitled to vote on a dissolution; in addition, there shall
be attached to the consent a certification by the secretary or some other
officer of the corporation setting forth the names and residences of the
directors and officers of the corporation.
ARTICLE XI
CUSTODIAN
11.1 Appointment of a Custodian in Certain Cases. The Court of
Chancery, upon application of any stockholder, may appoint one or more
persons to be custodians and, if the corporation is insolvent, to be
receivers, of and for the corporation when:
(i) at any meeting held for the election of directors the stockholders
are so divided that they have failed to elect successors to directors
whose terms have expired or would have expired upon qualification of
their successors;
(ii) the business of the corporation is suffering or is threatened with
irreparable injury because the directors are so divided respecting the
management of the affairs of the corporation that the required vote
for action by the board of directors cannot be obtained and the
stockholders are unable to terminate this division; or
(iii) the corporation has abandoned its business and has failed within a
reasonable time to take steps to dissolve, liquidate or distribute its
assets.
11.2 Duties of Custodian. The custodian shall have all the powers and
title of a receiver appointed under Section 291 of the General
Corporation Law of Delaware, but the authority of the custodian shall
be to continue the business of the corporation and not to liquidate
its affairs and distribute its assets, except when the Court of
Chancery otherwise orders and except in cases arising under
Sections 226(a)(3) or 352(a)(2) of the General Corporation Law of
Delaware.