BYLAWS
OF
ADAYTUM SOFTWARE, INC.
(a Delaware Corporation)
ARTICLE I.
Offices, Corporate Seal
Section 1.01. OFFICES. The Corporation shall have a registered office
in the State of Delaware, and a principal office and such other offices within
or without the State of Delaware as the Board of Directors may determine.
Section 1.02. CORPORATE SEAL. The Corporation shall have no corporate
seal.
ARTICLE II.
Meetings of Stockholders
Section 2.01. PLACE AND TIME OF MEETINGS. Meetings of the stockholders
may be held at such place and at such time as may be designated by the Board of
Directors. In the absence of a designation of place, this meeting shall be held
at the principal offices of the Corporation. In the absence of a designation of
time, the meeting shall be held at 10:00 a.m.
Section 2.02. ANNUAL MEETINGS. The annual meeting of the stockholders
of the Corporation for the election of directors and for the transaction of any
other proper business, notice of which was given in the notice of the meeting,
shall be held within six months after the close of the fiscal year of the
Corporation on such business day as the Board of Directors of the Corporation
shall determine from time to time. Failure to hold the annual meeting at the
designated time shall not work a dissolution of the Corporation nor impair the
powers, rights and duties of the Corporation's officers and directors.
Section 2.03. SPECIAL MEETINGS. Special meetings of the stockholders
for any purpose or purposes shall be called by resolution adopted by a majority
of the total number of directors, by the Chairman of the Board, by the President
or by the written request of the stockholders owning a majority of the shares
outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at any special meeting
shall be limited to the purposes stated in the notice.
Section 2.04. QUORUM, ADJOURNED MEETINGS. The holders of a majority of
the shares outstanding and entitled to vote shall constitute a quorum for the
transaction of business at any annual or special meeting. If a quorum is not
present at a meeting, those present shall adjourn to such day as they shall
agree upon by majority vote. Notice of any adjourned meeting need not be given
if the time and place thereof are announced at the meeting at which the
adjournment is taken. At adjourned meetings at which a quorum is present, any
business may be transacted
which might have been transacted at the meeting as originally noticed. If a
quorum is present, the stockholders may continue to transact business until
adjournment notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 2.05. ORGANIZATION. At each meeting of the stockholders, the
Chairman of the Board or in such person's absence the President or in such
person's absence the chairman chosen by a majority in voting interest of the
stockholders present in person or by proxy and entitled to vote shall act as
chairman; and the Secretary of the Corporation or in such person's absence an
Assistant Secretary or in such person's absence any person whom the chairman of
the meeting shall appoint shall act as Secretary of the meeting.
Section 2.06. ORDER OF BUSINESS. The order of business at all meetings
of the stockholders shall be determined by the Chairman of the meeting, but such
order of business may be changed by the vote of a majority in voting interest of
those present or represented at such meeting and entitled to vote thereat.
Section 2.07. VOTING. Each stockholder of the Corporation entitled to
vote at a meeting of stockholders or entitled to express consent in writing
without a meeting shall have one vote in person or by proxy for each share of
stock having voting rights held by such person and registered in such person's
name on the books of the Corporation. Upon the request of any stockholder, the
vote upon any question before a meeting shall be by written ballot, and all
elections of directors shall be by written ballot. All questions at a meeting
shall be decided by a majority vote of the number of shares entitled to vote
represented at the meeting at the time of the vote except where otherwise
required by statute, the Certificate of Incorporation or these Bylaws. Any
action to be taken by written consent without a meeting may be taken by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting in which
all shares entitled to vote thereon were present and voted. Except as provided
in Section 3.08, all directors shall be elected by a plurality of the votes cast
at Annual Meetings of stockholders. Persons holding stock in a fiduciary
capacity shall be entitled to vote the shares so held. If shares stand of record
in the names of two or more persons, whether fiduciaries, members of a
partnership, joint tenants, tenants in common, tenants by the entirety or
otherwise, or if two or more persons shall have the same fiduciary relationship
respecting the same shares, unless the Secretary of the Corporation shall have
been given written notice to the contrary and shall have been furnished with a
copy of the instrument or order appointing them or creating a relationship
wherein it is so provided, their acts with respect to voting shall have the
following effect:
(i) if only one shall vote, his act shall bind all.
(ii) if more than one shall vote, the act of the majority
voting shall bind all.
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(iii) if more than one shall vote, but the votes shall be
evenly split on any particular matter, then, except
as otherwise required by statute, each fraction may
vote the shares in question proportionately.
Section 2.08. INSPECTORS OF ELECTION. At each meeting of the
stockholders, the chairman of such meeting may appoint two inspectors of
election to act. Each inspector of election so appointed shall first subscribe
an oath or affirmation briefly to execute the duties of an inspector of election
at such meeting with strict impartiality and according to the best of his
ability such inspectors of election, if any, shall take charge of the ballots at
such meeting and after the balloting thereat on any question shall count the
ballots cast thereon and shall make a report in writing to the Secretary of such
meeting of the results thereof. An inspector of election need not be a
stockholder of the Corporation, and any officer or employee of the Corporation
may be an inspector of election on any question other than a vote for or against
his election to any position with the Corporation or on any other question in
which he may be directly interested.
Section 2.09. NOTICES OF MEETINGS AND CONSENTS. Every stockholder shall
furnish the Secretary of the Corporation with an address at which notices of
meetings and notices and consent material with respect to proposed corporate
action without a meeting and all other corporate communications may be served on
or mailed to such person. Except as otherwise provided by the Certificate of
Incorporation or by statute, a written notice of each annual and special meeting
of stockholders shall be given not less than 10 nor more than 60 days before the
date of such meeting or the date on which the corporate action without a meeting
is proposed to be taken to each stockholder of record of the Corporation
entitled to vote at such meeting by delivering such notice of meeting to such
person personally or depositing the same in the United States mail, postage
prepaid, directed to such person at the post office address shown upon the
records of the Corporation. Service of notice is complete upon mailing. Personal
delivery to any officer of a corporation or association or to any member of a
partnership is delivery to such corporation, association or partnership. Every
notice of a meeting of stockholders shall state the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called.
Section 2.10. PROXIES. Each stockholder entitled to vote at a meeting
of stockholders or consent to corporate action without a meeting may authorize
another person or persons to act for such person by proxy by an instrument
executed in writing. If any such instrument designates two or more persons to
act as proxies, a majority of such persons present at the meeting, or, if only
one shall be present, then that one, shall have and may exercise all of the
powers conferred by such written instrument upon all of the persons so
designated unless the instrument shall otherwise provide. No such proxy shall be
valid after three years from the date of its execution unless the proxy provides
for a longer period. A proxy may be irrevocable if it states that it is
irrevocable and, if, and only as long as, it is coupled with an interest
sufficient to support an irrevocable power. Subject to the above, any proxy may
be revoked if an instrument revoking it or proxy bearing a later date is filed
with the Secretary.
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Section 2.11. WAIVER OF NOTICE. Notice of any annual or special meeting
may be waived either before, at or after such meeting in writing signed by the
person or persons entitled to the notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transacting of any business because the meeting is not lawfully
called or convened.
Section 2.12. WRITTEN ACTION. Any action that may be taken at a meeting
of the stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the actions so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be required to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Prompt notice of the taking of the corporate action without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
Section 2.13. STOCKHOLDER LIST. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least 10 days before each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such 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
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.
ARTICLE III.
Board of Directors
Section 3.01. GENERAL POWERS. The business of the Corporation shall be
managed by the Board of Directors.
Section 3.02. NUMBER, QUALIFICATION AND TERM OF OFFICE. The number of
directors shall be established by a resolution adopted by a majority of the
total number of directors. Directors need not be stockholders. Each director
shall hold office until the annual meeting of stockholders next held after his
election or until the stockholders have elected directors by consent in writing
without a meeting and until his successor is elected and qualified or until his
earlier death, resignation or removal.
Section 3.03. MEETINGS. Regular meetings of the Board of Directors
shall be held from time to time at such time and place as may be fixed by
resolution adopted by a majority of the total number of directors.
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Section 3.04. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President, or by any
two of the directors and shall be held from time to time at such time and place
as may be designated in the notice of such meeting.
Section 3.05. NOTICE OF MEETINGS. No notice need be given of any
regular meeting of the Board of Directors. Notice of each special meeting of the
Board of Directors shall be given by the secretary who shall give at least
twenty-four hours' notice thereof to each director by mail, electronic mail,
telephone, telegram, or in person. Notice shall be effective upon receipt.
Section 3.06. WAIVER OF NOTICE. Notice of any meeting of the Board of
Directors may be waived either before, at, or after such meeting in writing
signed by each director. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purposes of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 3.07. QUORUM. A majority of the total number of directors shall
constitute a quorum for the transaction of business. The vote of a majority of
the directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors unless these Bylaws require a greater number.
Section 3.08. VACANCIES. Any vacancy among the directors or increase in
the authorized number of directors shall be filled for the unexpired term by a
majority of the directors then in office though less than a quorum or by the
sole remaining director. When one or more directors shall resign from the Board;
effective at a future date, a majority of the directors then in office may fill
such vacancy or vacancies to take effect when such resignation or resignations
shall become effective.
Section 3.09. REMOVAL. Any director may be removed from office at any
special meeting of the stockholders either with or without cause. If the entire
Board of Directors or any one or more directors is so removed, new directors
shall be elected at the same meeting.
Section 3.10. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution adopted by a majority of the total number of directors, designate one
or more committees, each to consist of two or more of the directors of the
Corporation, which, to the extent provided in the resolution, may exercise the
powers of the Board of Directors in the management of the business and affairs
of the Corporation. The Board of Directors may designate one or more directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. Such committee or
committees shall have such name or names as may be determined by the resolution
adopted by the directors. The committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required.
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Section 3.11. WRITTEN ACTION. Any action required or permitted to be
taken at a meeting of the Board of Directors or any committee thereof may be
taken without a meeting if all directors or committee members consent thereto in
writing and the writing or writings are filed with the minutes of proceedings of
the Board of Directors or committee.
Section 3.12. COMPENSATION. The Board of Directors shall have the
authority to fix the compensation of directors for their services. A director
may also serve the Corporation in any other capacity and receive proper
compensation therefor.
Section 3.13. CONFERENCE COMMUNICATIONS. Directors may participate in
any meeting of the Board of Directors, or of any duly constituted committee
thereof, by means of a conference telephone conversation or other comparable
communication technique whereby all persons participating in the meeting can
hear and communicate to each other. For the purposes of establishing a quorum
and taking any action at the meeting, such directors participating pursuant to
this Section 3.13 shall be deemed present in person at the meeting; and the
place of the meeting shall be the place of origination of the conference
telephone conversation or other comparable communication technique.
ARTICLE IV.
Officers
Section 4.01. NUMBER. The officers of the Corporation shall consist of
a President, a Secretary and a Treasurer, and may include one or more Vice
Presidents and any officers and agents as the Board of Directors by a majority
vote of the total number of directors may designate. The Board of Directors may
also choose a Chairman of the Board of Directors. Any person may hold two or
more offices.
Section 4.02. ELECTION, TERM OF OFFICE, AND QUALIFICATIONS. The Board
of Directors at its first meeting held after each Annual Meeting of Stockholders
shall elect the officers of the Corporation who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors; and all officers of the
Corporation shall hold office until their successors are chosen and qualified;
or until their earlier resignation or removal. Officers who may be directors
shall hold office until the election and qualification of their successors,
notwithstanding an earlier termination of their directorship.
Section 4.03. REMOVAL AND VACANCIES. Any officer may be removed from
his office by a majority vote of the total number of directors with or without
cause. Such removal shall be without prejudice to the contract rights of the
person so removed. A vacancy among the officers by death, resignation, removal,
or otherwise shall be filled for the unexpired term by the Board of Directors.
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Section 4.04. CHAIRMAN OF THE BOARD. The Chairman of the Board, if one
is elected, shall preside at all meetings of the stockholders and directors and
shall have such other duties as may be prescribed, from time to time, by the
Board of Directors.
Section 4.05. PRESIDENT. The President shall have general active
management of the business of the Corporation. The President shall preside at
all meetings of the stockholders and directors. Unless provided otherwise, the
President shall be the chief executive officer of the Corporation and shall see
that all orders and resolutions of the directors are carried into effect. The
President shall be ex officio a member of all standing committees. The President
may execute and deliver in the name of the Corporation any deeds, mortgages,
bonds, contracts or other instruments pertaining to the business of the
Corporation and in general shall perform all duties usually incident to the
office of the president. The President shall have such other duties as may, from
time to time, be prescribed by the Board of Directors.
Section 4.06. VICE PRESIDENT. Each Vice President shall have such
powers and shall perform such duties as may be prescribed by the Board of
Directors or by the President. In the event of absence or disability of the
President, Vice Presidents shall succeed to his power and duties in the order
designated by the Board of Directors.
Section 4.07. SECRETARY. The Secretary shall be secretary of and shall
attend all meetings of the stockholders and Board of Directors and shall record
all proceedings of such meetings in the minute book of the Corporation. The
Secretary shall give proper notice of meetings of stockholders and the Board of
Directors. The Secretary shall perform such other duties as may from time to
time be prescribed by the Board of Directors or by the President.
Section 4.08. TREASURER. The Treasurer shall keep accurate accounts of
all moneys of the Corporation received or disbursed. The Treasurer shall deposit
all moneys, drafts and checks in the name of and to the credit of the
Corporation in such banks and depositaries as a majority of the whole Board of
Directors shall from time to time designate. The Treasurer shall have power to
endorse for deposit all notes, checks and drafts received by the Corporation.
The Treasurer shall disburse the funds of the Corporation as ordered by the
directors, making proper vouchers therefor. The Treasurer shall render to the
President and the Board of Directors whenever required an account of all his
transactions as Treasurer and of the financial condition of the Corporation and
shall perform such other duties as may from time to time be prescribed by the
Board of Directors or by the President. Unless provided otherwise by a
resolution of the Board of Directors, the Treasurer shall be the Chief Financial
Officer of the Company.
Section 4.09. DUTIES OF OTHER OFFICERS. The duties of such other
officers and agents as the Board of Directors may designate shall be set forth
in the resolution creating such office or by subsequent resolution.
Section 4.10. COMPENSATION. The officers of the Corporation shall
receive such compensation for their services as may be determined from time to
time by resolution of the
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Board of Directors or by one or more committees to the extent so authorized from
time to time by the Board of Directors.
ARTICLE V.
Shares and Their Transfer
Section 5.01. CERTIFICATES FOR STOCK. Every holder of stock in the
Corporation shall be entitled to a certificate, to be in such form as shall be
prescribed by the Board of Directors, certifying the number of shares in the
Corporation owned by such person. The certificates for such shares shall be
numbered in the order in which they shall be issued and shall be signed in the
name of the Corporation by the Chairman of the Board, the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary. Every certificate surrendered to the Corporation for
exchange or transfer shall be cancelled, and no new certificate or certificates
shall be issued in exchange for any existing certificate until such certificate
shall have been so cancelled, except in cases provided for in Section 5.04.
Section 5.02. ISSUANCE OF STOCK. The Board of Directors is authorized
to cause to be issued stock of the Corporation up to the full amount authorized
by the Certificate of Incorporation in such amounts and for such consideration
as may be determined by the Board of Directors. No shares shall be allotted
except in consideration of cash, labor, personal property, or real property, or
leases thereof, or of an amount transferred from surplus to stated capital upon
a share dividend. At the time of such allotment of stock, the Board of Directors
shall state its determination of the fair value to the Corporation in monetary
terms of any consideration other than cash for which shares are allotted. Stock
so issued shall be fully paid and nonassessable. The amount of consideration to
be received in cash or otherwise shall not be less than the par value of the
shares so allotted. Treasury shares may be disposed of by the Corporation for
such consideration, expressed in dollars, as may be fixed by the Board of
Directors.
Section 5.03. TRANSFER OF STOCK. Transfer of stock on the books of the
Corporation may be authorized only by the stockholder named in the certificate,
the stockholder's legal representative or the stockholder's duly authorized
attorney-in-fact and upon surrender of the certificate or the certificates for
such stock. The Corporation may treat as the absolute owner of stock of the
Corporation the person or persons in whose name stock is registered on the books
of the Corporation.
Section 5.04. LOSS OF CERTIFICATES. Any stockholder claiming a
certificate for stock to be lost, stolen or destroyed shall make an affidavit of
that fact in such form as the Board of Directors may require and shall, if the
Board of Directors so requires, give the Corporation a bond of indemnity in
form, in an amount, and with one or more sureties satisfactory to the Board of
Directors, to indemnify the Corporation against any claims which may be made
against it on account of the alleged loss, theft or destruction of the
certificate or issuance of such new certificate. A new certificate may then be
issued in the same tenor and for the same number of shares as the one claimed to
have been lost, stolen or destroyed.
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Section 5.05. FACSIMILE SIGNATURES. Whenever any certificate is
countersigned by a transfer agent or by a registrar other than the Corporation
or its employee, then the signatures of the officers or agents of the
Corporation may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed on any such
certificate shall cease to be such officer, transfer agent or registrar before
such certificate is issued, it may be issued by the Corporation as though the
person who signed such certificate or whose facsimile signature or signatures
had been placed thereon were such officer, transfer agent or registrar at the
date of issue.
ARTICLE VI.
Dividends, Surplus, Etc.
Section 6.01. DIVIDENDS. The Board of Directors may declare dividends,
upon the outstanding stock of the Corporation subject to applicable law and the
Corporation's Certificate of Incorporation, at any regular or special meeting.
Dividends may be declared and paid in cash, in property, or in shares of the
Corporation, or in a combination thereof.
Section 6.02. USE OF SURPLUS, RESERVES. The Board of Directors may use
any of its property or funds, unless such would cause an impairment of capital,
in purchasing any of the stock, bonds, debentures, notes, scrip or other
securities or evidences of indebtedness of the Corporation. The Board of
Directors may from time to time set aside from its surplus or net profits such
sums as it deems proper as a reserve fund for any purpose.
ARTICLE VII.
Books and Records, Audit, Fiscal Year
Section 7.01. BOOKS AND RECORDS. The Board of Directors of the
Corporation shall cause to be kept: (a) a share ledger which shall be a charge
of an officer designated by the Board of Directors; (b) records of all
proceedings of stockholders and directors; and (c) such other records and books
of account as shall be necessary and appropriate to the conduct of the corporate
business.
Section 7.02. AUDIT. The Board of Directors shall cause the records and
books of account of the Corporation to be audited as it may deem necessary or
appropriate.
Section 7.03. ANNUAL REPORT. The Board of Directors shall cause to be
filed with the Delaware Secretary of State in each year the annual report
required by law.
Section 7.04. FISCAL YEAR. The fiscal year of the Corporation shall end
on the date established by the Board of Directors.
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Section 7.05. EXAMINATION BY STOCKHOLDERS. Any stockholder of record of
the Corporation, upon written demand under oath stating the purpose thereof,
shall have the right to inspect in person or by agent or attorney, during usual
business hours, 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. Holders of voting trust certificates
representing stock of the Corporation shall be regarded as stockholders for the
purpose of this Section 7.05. In every instance where an attorney or other agent
shall be the person who seeks the right to inspection, the demand under oath
shall be accompanied by a power of attorney or such other writing which
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 office.
ARTICLE VIII.
Indemnification
Section 8.01 INDEMNIFICATION. The Corporation shall indemnify such
persons for such liabilities in such manner under such circumstances and to such
extent as permitted by Section 145 of the Delaware General Corporation Law, as
now enacted or hereafter amended. The Board of Directors may authorize the
purchase and maintenance of insurance and/or the execution of individual
agreements for the purpose of such indemnification, and the Corporation shall
advance all reasonable costs and expenses (including attorneys' fees) incurred
in defending any action, suit or proceeding to all persons entitled to
indemnification under this Section 8.01, all in the manner, under the
circumstances and to the extent permitted by Section 145 of the Delaware General
Corporation Law, as now enacted or hereafter amended.
Section 8.02. NON-EXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VIII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-Law, agreement, contract, vote of stockholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in such person
official capacity and as to action in another capacity while holding such
office, it being the policy of the Corporation that indemnification of any
director, officer, employee or agent of the Corporation or any director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise who is serving at the request of the Corporation shall
be made to the fullest extent permitted by law. The provisions of this Article
VIII shall not be deemed to preclude the indemnification of any director,
officer, employee or agent of the Corporation or any director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise who is serving at the request of the Corporation who is not specified
in this Article VIII but whom the Corporation has the power or obligation to
indemnify under the provisions of the Delaware General Corporation Law, or
otherwise.
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Section 8.03. MEANING OF "CORPORATION" FOR PURPOSES OF ARTICLE VIII.
For purposes of this Article VIII, references to "the Corporation" include, in
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 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 quest 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 VIII with respect to the resulting or surviving
corporation as such person would have respect to such constituent corporation if
its separate existence had continued.
Section 8.04. SURVIVAL INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article VIII shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
ARTICLE IX.
Miscellaneous
Section 9.01. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a record date, which shall not be
more than 60 nor less than 10 days before the date of such meeting, nor more
than 60 days prior to any other action.
(b) If no record date is fixed:
(1) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close
of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held.
(2) The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when
no prior action by the Board of Directors is necessary, shall be the
day on which the first written consent is expressed.
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(3) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto.
(c) A determination of stockholders of record entitled to notice of or
to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 9.02. PERIODS OF TIME. During any period of time prescribed by
these Bylaws, the date from which the designated period of time begins to run
shall not be included, and the last day of the period so computed shall be
included.
Section 9.03. VOTING SECURITIES HELD BY THE CORPORATION. Unless
otherwise ordered by the Board of Directors, the President shall have full power
and authority on behalf of the Corporation (a) to attend and to vote at any
meeting of security holders of other corporations in which the Corporation may
hold securities; (b) to execute any proxy for such meeting on behalf of the
Corporation; or (c) to execute a written action in lieu of a meeting of such
other corporation on behalf of the Corporation. At such meeting, by such proxy
or by such writing in lieu of meeting, the President shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities that the Corporation might have possessed and exercised if it had
been present. The Board of Directors may, from time to time, confer like powers
upon any other person or persons.
Section 9.04. PURCHASE AND SALE OF SECURITIES. Unless otherwise ordered
by the Board of Directors, the President shall have full power and authority on
behalf of the Corporation to purchase, sell, transfer or encumber any and all
securities of any other corporation owned by the Corporation. The President may
execute and deliver such documents as may be necessary to effectuate such
purchases, sales, transfers or encumbrances. The Board of Directors may, from
time to time, confer like powers upon any other person or persons.
ARTICLE X.
Amendments
Section 10.01. These Bylaws may be amended, altered or repealed by a
vote of the majority of the total number of directors or of the stockholders at
any meeting upon proper notice.
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