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AMENDED AND RESTATED
BYLAWS OF
THOMAS GROUP, INC.
A Delaware Corporation
As of May 30, 2001
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BYLAWS OF
THOMAS GROUP, INC.
TABLE OF CONTENTS
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ARTICLE I OFFICES
Section 1. Registered Office 1
Section 2. Other Offices 1
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings 1
Section 2. Annual Meetings 1
Section 3. Special Meetings 1
Section 4. Notice of Meetings and Adjourned Meetings 2
Section 5. Quorum 2
Section 6. Certain Rules of Procedure Relating to
Stockholder Meetings 3
Section 7. Voting 3
Section 8. Inspectors 4
Section 9. New Business 5
Section 10. Nominations for Director 5
Section 11. Requests for Stockholder List and Corporation Records 6
ARTICLE III DIRECTORS
Section 1. Powers 7
Section 2. Number of directors; Term; Qualification 7
Section 3. Election 7
Section 4. Vacancies 7
Section 5. Place of Meetings 8
Section 6. Regular Meetings 8
Section 7. Special Meetings 8
Section 8. Notice of Meetings 8
Section 9. Quorum and Manner of Acting 8
Section 10. Action by consent; Participation by Telephone
or Similar Equipment 9
Section 11. Resignation; Removal 9
Section 12. Compensation of Directors 9
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ARTICLE IV COMMITTEES OF THE BOARD
Section 1. Designation, Powers and Name 10
Section 2. Meetings; minutes 10
Section 3. Compensation 11
Section 4. Action by Consent; Participation by Telephone
or Similar Equipment 11
Section 5. Changes in Committees; Resignations:
Removals 11
ARTICLE V OFFICERS
Section 1. Officers 12
Section 2. Election and Term of Office 12
Section 3. Removal and Resignation 12
Section 4. Vacancies 12
Section 5. Salaries 13
Section 6. Chairman of the Board 13
Section 7. Chief Executive Officer 13
Section 8. President and Chief Operating Officer 13
Section 9. Vice Presidents 14
Section 10. Treasurer 14
Section 11. Assistant Treasurer 14
Section 12. Secretary 14
Section 13. Assistant Secretaries 15
ARTICLE VI CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. Contracts 15
Section 2. Checks, etc. 15
Section 3. Loans 15
Section 4. Deposits 15
ARTICLE VII CAPITAL STOCK
Section 1. Stock Certificates 16
Section 2. List of Stockholders Entitled to Vote. 16
Section 3. Stock Ledger 17
Section 4. Transfers of Capital Stock 17
Section 5. Lost Certificates 17
Section 6. Fixing of Record Date 17
Section 7. Beneficial Owners
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ARTICLE VIII DIVIDENDS
Section 1. Declaration 18
Section 2. Reserve 18
ARTICLE IX INDEMNIFICATION
Section 1. Indemnification 18
Section 2. Advancement of Expenses 19
Section 3. Non-Exclusivity 19
Section 4. Insurance 19
Section 5. Continuity 20
ARTICLE X SEAL 20
ARTICLE XI WAIVER OF NOTICE 20
ARTICLE XII AMENDMENTS 20
</Table>
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BYLAWS
OF
THOMAS GROUP, INC.
A Delaware Corporation
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of Thomas Group,
Inc. (hereinafter called the "Corporation") within the State of Delaware
shall be located in the City of Wilmington, County of New Castle.
Section 2. OTHER OFFICES. The Corporation may also have an office or
offices and keep the books and records of the Corporation, except as may
otherwise be required by law, in such other place or places, within or
without the State of Delaware, as the Board of Directors of the Corporation
(hereinafter sometimes called the "Board") may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of stockholders of the
Corporation shall be held at the office of the Corporation in the State of
Delaware or at such other place, within or without the State of Delaware, as
may from time to time be fixed by the Board or specified or fixed in the
respective notices or waivers of notice thereof.
Section 2. ANNUAL MEETINGS. The annual meeting of stockholders of the
Corporation for the election of Directors and for the transaction of such
other business as may properly come before the meeting shall be held annually
on such date and at such time as may be fixed by the Board.
Section 3. SPECIAL MEETINGS. Special meetings of stockholders, unless
otherwise provided by law, may be called at any time only by (i) the Board
pursuant to a resolution adopted by a majority of the then authorized number
of Directors (as determined in accordance with Section 2 of Article III of
these Bylaws), (ii) the Chairman of the Board, or (iii) the President. Any
such call must specify the matter or matters to be acted upon at such meeting
and only such matter or matters shall be acted upon thereat.
Section 4. NOTICE OF MEETINGS AND ADJOURNED MEETINGS. Except as may
otherwise be required by law, notice of each meeting of stockholders, annual
or special, shall be in writing, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is the annual
meeting, shall indicate that the notice is being issued by or at the
direction
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of the person or persons calling the meeting, and a copy thereof shall be
delivered or sent by mail, not less than ten (10) or more than sixty (60)
days before the date of said meeting, to each stockholder entitled to vote at
such meeting. If mailed, such notice shall be directed to the stockholder at
his address as it appears on the stock record of the Corporation unless he
shall have filed with the Secretary a written request that notices to him be
mailed to some other address, in which case it shall be directed to him at
such other address. Notice of any adjourned meeting need not be given if the
time and place to which the meeting shall be adjourned were announced at the
meeting at which the adjournment was taken unless (i) the adjournment is for
more than thirty (30) days, (ii) the Board shall fix a new record date for
any adjourned meeting after the adjournment or (iii) these Bylaws otherwise
require.
Section 5. QUORUM. At each meeting of stockholders of the Corporation,
the holders of a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote shall be present or represented
by proxy to constitute a quorum for the transaction of business, except as
may otherwise be provided by law or the Certificate of Incorporation.
If a quorum is present at a meeting of stockholders, the stockholders
represented in person or by proxy at the meeting may conduct such business as
may be properly brought before the meeting until it is finally adjourned, and
the subsequent withdrawal from the meeting of any stockholder or the refusal
of any stockholder represented in person or by proxy to vote shall not affect
the presence of a quorum at the meeting, except as may otherwise be provided
by law or the Certificate of Incorporation.
If, however, a quorum shall not be present or represented at any meeting
of the stockholders, the chairman of the meeting or holders of majority of
the shares represented in person or by proxy shall have the power to adjourn
the meeting to another time, or to another time and place, without notice
(subject, however, to the requirements of Section 4 of Article II of these
Bylaws) other than announcement of adjournment at the meeting, and there may
be successive adjournments for like cause and in like manner until the
requisite amount of shares entitled to vote at such meeting shall be
represented. At such adjourned meeting at which the requisite amount of
shares entitled to vote thereat shall be represented, any business may be
transacted that might have been transacted at the original meeting so
adjourned.
Section 6. CERTAIN RULES OF PROCEDURE RELATING TO STOCKHOLDER MEETINGS.
All stockholder meetings, annual or special, shall be governed in accordance
with the following rules:
(i) Only stockholders of record or their proxies will be permitted
to present motions from the floor at any meeting of stockholders.
(ii) The chairman of the meeting shall preside over and conduct the
meeting in a fair and reasonable manner, and all questions of procedure or
conduct of the meeting shall be decided solely by the chairman of the
meeting. The chairman of the meeting shall have all power and authority
vested in a presiding officer by law or practice to conduct an orderly
meeting. Among other things, the chairman of the meeting shall have the
power to
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adjourn or recess the meeting, to silence or expel persons to insure
the orderly conduct of the meeting, to declare motions or persons out of
order, to prescribe rules of conduct and an agenda for the meeting, to
impose reasonable time limits on questions and remarks by any stockholder,
to limit the number of questions a stockholder may ask, to limit the nature
of questions and comments to one subject matter at a time as dictated by
any agenda for the meeting, to limit the number of speakers or persons
addressing the chairman of the meeting or the meeting, to determine when
the polls shall be closed, to limit the attendance at the meeting to
stockholders of record, beneficial owners of stock who present letters from
the record holders confirming their status as beneficial owners, and the
proxies of such record and beneficial holders, and to limit the number of
proxies a stockholder may name.
Section 7. VOTING. Except as otherwise provided in the Certificate of
Incorporation, at each meeting of stockholders, every stockholder of the
Corporation shall be entitled to one (1) vote for every share of capital
stock standing in his name on the stock records of the Corporation (i) at the
time fixed pursuant to Section 6 of Article VII of these Bylaws as the record
date for the determination of stockholders entitled to vote at such meeting,
or (ii) if no such record date shall have been fixed, then at the close of
business on the date next preceding the day on which notice thereof shall be
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. At each such meeting, every
stockholder shall be entitled to vote in person, or by proxy appointed by an
instrument in writing executed by such stockholder or by his duly authorized
agent and bearing a date not more than three (3) years prior to the meeting
in question, unless said instrument provides for a longer period during which
it is to remain in force.
At all meetings of stockholders at which a quorum is present, all matters
(except as otherwise provided in Section 3 of Article III of these Bylaws and
except in cases where a larger vote is required by law, the Certificate of
Incorporation or these Bylaws) shall be decided by a majority of the votes
cast affirmatively or negatively at such meeting by the holders of shares
present or represented by proxy and entitled to vote thereon.
At any meeting of stockholders, every stockholder having the right to
vote may vote either in person or by a proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. Each such proxy
shall be filed with the Secretary of the Corporation before or at the time of
the meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. Each proxy shall be
revocable unless expressly provided therein to be irrevocable and coupled
with an interest sufficient in law to support an irrevocable power or unless
otherwise made irrevocable by law.
Section 8. INSPECTORS. The Board of Directors shall, in advance of any
meeting of stockholders, appoint one or more inspectors to act at the meeting
and may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If any inspector appointed or designated by the
Board shall be unwilling or unable to serve, or if the Board shall fail to
appoint inspectors, the chairman of the meeting shall appoint the necessary
inspector or inspectors. The inspectors so appointed, before entering upon
the discharge of their duties, shall
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be sworn faithfully to execute their duties with strict impartiality, and
according to the best of their ability, and the oath so taken shall be
subscribed by them. Such inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a meeting, the existence of a quorum, and the validity of
proxies and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by such inspectors, (v) certify their determination
of the number of shares represented at the meeting and their count of all
votes and ballots and (vi) perform such further acts as are proper to conduct
any election or vote with fairness to all stockholders. On request of the
chairman of the meeting, the inspectors shall make a report in writing of any
challenge, question or matter determined by them and shall execute a
certificate of any fact found by them. An inspector need not be a
stockholder of the Corporation, and any officer or Director of the
Corporation may be an inspector 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 9. NEW BUSINESS. Any new business to be taken up at any annual
meeting of stockholders shall be stated in writing and filed with the
Secretary by the Board of Directors or other person or persons proposing such
new business at least ninety (90) days before the date of the annual meeting,
and all business so stated, proposed and filed shall be considered at the
annual meeting, but no other proposal shall be acted upon at the annual
meeting of stockholders. Any stockholder may make any other proposal at the
annual meeting, and the proposal may be discussed and considered, but unless
stated in writing and filed with the Secretary at least ninety (90) days
before the meeting such proposal shall be postponed for action at the next
annual or special meeting of stockholders or at an adjournment of the meeting
with respect to which such business was proposed. This provision shall not
prevent the consideration and approval or disapproval at the annual meeting
of stockholders of reports of officers, Directors and committees of the Board
of Directors, but in connection with such reports no new business shall be
acted upon at such annual meeting unless stated and filed as herein provided.
Section 10. NOMINATIONS FOR DIRECTOR. Notwithstanding anything in these
Bylaws to the contrary, only persons who are nominated in accordance with the
procedures hereinafter set forth in this Section 10 shall be eligible for
election as Directors of the Corporation in accordance with Section 3 of
Article III of these Bylaws.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders only (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 10. Such
nominations, other than those made by or at the direction of the Board, shall
be made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than thirty (30) days nor more than sixty (60) days prior to the
meeting; provided, however that in the event that less than forty (40) 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 (10th) day following the
day on which
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such notice of the date of the meeting was mailed or such public disclosure
was made. Any adjournment(s) or postponement(s) of the original meeting
whereby the meeting will reconvene within thirty (30) days from the original
date shall be deemed for purposes of notice to be a continuation of the
original meeting and no nominations by a stockholder of persons to be elected
Directors of the Corporation may be made at any such reconvened meeting other
than pursuant to a notice that was timely for the meeting on the date
originally scheduled. Such stockholder's notice shall set forth: (i) as to
each person whom the stockholder proposed to nominate for election or
re-election as a Director, all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
Directors, or as otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended, or any successor
regulation thereto (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a Director if elected);
and (ii) as to the stockholder giving the notice (a) the name and address, as
they appear on the Corporation's books, of such stockholder, and (b) the
class and number of shares of the Corporation which are beneficially owned by
such stockholder. At the request of the Board of Directors, any person
nominated by the Board for election as a Director shall furnish to the
Secretary of the Corporation that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by this Section 10, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 11. REQUESTS FOR STOCKHOLDER LIST AND CORPORATION RECORDS.
Stockholders shall have those rights afforded under the General Corporation
Law of the State of Delaware (the "DGCL") to inspect for any proper purpose
the Corporation's stock ledger, list of stockholders and other books and
records, and make copies or extracts therefrom. Such request shall be in
writing in compliance with Section 220 of the DGCL. Information so requested
shall be made available for inspecting, copying or extracting during usual
business hours at the principal executive offices of the Corporation.
Alternative arrangements with respect to this Section 11 may be permitted in
the discretion of the President of the Corporation or by vote of the Board of
Directors.
ARTICLE III
DIRECTORS
Section 1. POWERS. The business of the Corporation shall be managed by
or under the direction of the Board. The Board may exercise all such
authority and powers of the Corporation and do all such lawful acts and
things as are not by law or otherwise directed or required to be exercised or
done by the stockholders.
Section 2. NUMBER OF DIRECTORS; TERM; QUALIFICATION. The number of
Directors which shall constitute the whole Board of Directors shall be not
less than one (1), and may be from time to time fixed and determined at a
different number only by resolution of the Board of
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Directors. No decrease in the number of Directors constituting the Board
shall shorten the term of any incumbent Director.
Except as otherwise provided by law, the Certificate of Incorporation or
these Bylaws, each Director shall hold office until the next annual meeting
and until his successor is elected and qualified, or until his earlier death,
resignation, disqualification or removal. Directors need not be residents of
the State of Delaware or stockholders of the Corporation. Each director must
have attained the age of majority.
Section 3. ELECTION. At each meeting of stockholders for the election
of Directors at which a quorum is present, the persons receiving a plurality
of the votes of the shares represented in person or by proxy and entitled to
vote on the election of Directors shall be elected Directors. All elections
of Directors shall be by written ballot, unless otherwise provided in the
Certificate of Incorporation.
Section 4. VACANCIES. Unless otherwise provided by law or by the
Certificate of Incorporation, in the case of any increase in the number of
Directors or any vacancy in the Board of Directors, such newly created
directorship or vacancy may be filled by the affirmative vote of the majority
of the remaining Directors then in office, although less than a quorum, or by
a sole remaining Director. Unless the Certificate of Incorporation or these
Bylaws provide otherwise, when one or more Directors shall resign from the
Board of Directors, effective at a future date, the majority of Directors
then in office, including those who have so resigned, shall have the power to
fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective. Any Director elected or
chosen as provided herein shall serve for the remaining term of the
directorship to which appointed and until his successor is elected and
qualified or until his earlier death, resignation or removal.
Section 5. PLACE OF MEETINGS. Meetings of the Board shall be held at
the Corporation's office in the State of Delaware or at such other place,
within or without such State, as the Board may from time to time determine or
as shall be specified or fixed in the notice or waiver of notice of any such
meeting.
Section 6. REGULAR MEETINGS. Regular meetings of the Board shall be
held on such days and at such times as the Board may from time to time
determine. Notice of regular meetings of the Board need not be given except
as otherwise required by law or these Bylaws.
Section 7. SPECIAL MEETINGS. Special meetings of the Board may be
called by the Chairman of the Board or the President and shall be called by
the Secretary at the request of any two of the other Directors.
Section 8. NOTICE OF MEETINGS. Notice of each special meeting of the
Board (and of each regular meeting for which notice shall be required),
stating the time, place and purposes thereof, shall be mailed to each
Director, addressed to him at his residence or usual place of business, or
shall be sent to him by telex, cable, facsimile or telegram so addressed, or
shall be given personally or by telephone, on twenty-four (24) hours notice,
or such shorter notice as the
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person or persons calling such meeting may deem necessary or appropriate in
the circumstances. Notice of any such meeting need not be given to any
Director, however, if waived by him before or after the other form of
recorded communication, or if he shall be present at the meeting, except when
he is present for the express purpose of objecting at the beginning of such
meeting to the transaction of any business because the meeting is now
lawfully called or convened.
Section 9. QUORUM AND MANNER OF ACTING. The presence of at least a
majority of the authorized number of Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business at any
meeting of the Board. If a quorum shall not be present at any meeting of the
Board, a majority of the Directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be present. Except where a different vote is required
by law, the act of a majority of the Directors present at any meeting at
which a quorum shall be present shall be the act of the Board.
Section 10. ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Any action required or permitted to be taken by the Board may be
taken without a meeting if all the Directors consent in writing to the
adoption of a resolution authorizing the action, unless otherwise restricted
by the Certificate of Incorporation or these Bylaws. The resolution and the
written consents thereto by the Directors shall be filed with the minutes of
the proceedings of the Board. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, any one or more Directors may participate
in any meeting of the Board by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall
constitute presence in person at a meeting of the Board.
Section 11. RESIGNATION; REMOVAL. Any Director may resign at any time
by giving written notice to the Corporation, provided, however, that written
notice to the Board, the Chairman of the Board, the President or the
Secretary shall be deemed to constitute notice to the Corporation. Such
resignation shall take effect upon receipt of such notice or at any later
time specified therein, and, unless otherwise specified therein, acceptance
of such resignation shall not be necessary to make it effective.
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; provided, however, that when the holders of
any class or series are entitled by the Certificate of Incorporation to elect
one (1) or more Directors, then, with respect to the removal without cause of
a Director or Directors so elected, the required majority vote shall be of
the holders of the outstanding shares of such class or series and not of the
outstanding shares as a whole.
A Board member who ceases to be active in his or her principle business
or profession, or experiences other change in circumstances that could
diminish his or her effectiveness as a Board member, is expected to offer his
or her resignation to the Board, which will determine whether such member
should continue to serve as a director
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Section 12. COMPENSATION OF DIRECTORS. The Board may, unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, provide for
the payment to any of the Directors of a specified amount for services as a
Director and/or member of a committee of the Board, or of a specified amount
for attendance at each regular or special Board meeting or committee meeting,
or of both, and all Directors shall be reimbursed for expenses of attendance
at any such meeting; provided, however, that nothing herein contained shall
be construed to preclude any Director from serving the Corporation in any
other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. DESIGNATION, POWERS AND NAME. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, including, if they shall so determine, an Executive Committee,
each such committee to consist of one or more of the directors of the
Corporation.
Except to the extent restricted by law, the Certificate of Incorporation,
or these Bylaws, each committee designated by the Board of Directors shall
have and may exercise such of the powers of the Board in the management of
the business and affairs of the Corporation as may be provided in such
resolution or in these Bylaws; provided, however, that no such committee
shall have the power or authority in reference to amending 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 pursuant to authority, if any, expressly
vested in the Board by the provisions of the Certificate of Incorporation,
(i) fix the designations and 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, or (ii) fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to
the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the Bylaws of the Corporation; and, provided
further, that, unless the resolution establishing the committee, the
Certificate of Incorporation or these Bylaws 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 DGCL. The committee may authorize the
seal of the Corporation to be affixed to all papers which may require it.
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.
Section 2. MEETINGS; MINUTES. Unless the Board of Directors shall
otherwise provide, upon designation of any committee by the Board, such
committee shall elect one of its
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members as chairman and may elect one of its members as vice chairman and
shall adopt rules of proceeding providing for, among other things, the manner
of calling committee meetings, giving notices thereof, quorum requirements
for such meetings, and the methods of conducting the same. Each committee of
Directors shall keep regular minutes of its proceedings and report the same
to the Board of Directors when required.
Section 3. COMPENSATION. Members of special or standing committees may
be allowed compensation if the Board of Directors shall so determine pursuant
to Section 12 of Article III of these Bylaws.
Section 4. ACTION BY CONSENT; PARTICIPATION BY TELEPHONE OR SIMILAR
EQUIPMENT. Unless the Board of Directors, the Certificate of Incorporation
or these Bylaws shall otherwise provide, any action required or permitted to
be taken by any committee may be taken without a meeting if all members of
the committee consent in writing to the adoption of a resolution authorizing
the action. The resolution and the written consents thereto by the members
of the committee shall be filed with the minutes of the proceedings of the
committee. Unless the Board of Directors, the Certificate of Incorporation,
or these Bylaws shall otherwise provide, any other or more members of any
such committee may participate in any meeting of the committee by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other. Participation
by such means shall constitute presence in person at a meeting of the
committee.
Section 5. CHANGES IN COMMITTEES; RESIGNATIONS; REMOVALS. The Board
shall have power, by the affirmative vote of a majority of the authorized
number of Directors, at any time to change the members of, to fill vacancies
in, and to discharge any committee of the Board. Any member of any such
committee may resign at any time by giving notice to the Corporation,
provided, however, that notice to the Board, the Chairman of the Board, the
President, the chairman of such committee or the Secretary shall be deemed to
constitute notice to the Corporation. Such resignation shall take effect
upon receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, acceptance of such resignation shall not
be necessary to make it effective. Any member of any such committee may be
removed at any time, with or without cause, by the affirmative vote of a
majority of the authorized number of Directors at any meeting of the Board
called for that purpose.
ARTICLE VI
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, a Chief
Operating Officer, one or more Vice Presidents (any one or more of whom may
be designated Executive Vice President or Senior Vice President), a Secretary
and a Treasurer. The Board of Directors may appoint such other officers and
agents, including Assistant Vice Presidents, Assistant Secretaries and
Assistant Treasurers, as it shall deem necessary, who shall hold their
offices for such terms and shall exercise such powers and perform such duties
as shall be determined by the Board. Any two or more offices may be held by
the same person. The Chairman of the Board shall be elected from
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among the Directors. With the foregoing exception, none of the other
officers need be a Director, and none of the officers need be a stockholder
of the Corporation unless otherwise required by the Certificate of
Incorporation.
Section 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually by the Board of Directors at its first regular
meeting held after the annual meeting of stockholders or as soon thereafter
as conveniently practicable. Each officer shall hold office until his
successor shall have been elected or appointed and shall have been qualified
or until his death or the effective date of his resignation or removal, or
until he shall cease to be a Director in the case of the Chairman of the
Board.
Section 3. REMOVAL AND RESIGNATION. Any officer or agent elected or
appointed by the Board of Directors may be removed, with or without cause, by
the affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the Corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Election or appointment of an officer or agent shall
not of itself create contract rights other than indemnification rights with
respect to officers. Any officer may resign at any time by giving written
notice to the Corporation. Any such resignation shall take effect at the
date of the receipt of such notice or at any later time specified therein,
and unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 4. VACANCIES. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors and, in the case of any vacancy in an office other than
the office of Chairman of the Board (if any) or President, by the President
for the unexpired portion of the term.
Section 5. SALARIES. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a Director.
Section 6. CHAIRMAN OF THE BOARD. The Chairman of the Board (who may
also hold the office of Chief Executive Officer or other offices) shall have
such duties as the Board of Directors may prescribe. The Chairman of the
Board shall preside at all meetings of the stockholders and of the Board of
Directors. The Chairman of the Board may sign all certificates for shares of
stock of the Corporation. In the Chairman's absence, such duties shall be
attended to by the President or any Vice President.
Section 7. CHIEF EXECUTIVE OFFICER. Unless and to the extent that such
powers and duties are expressly delegated to the Chairman of the Board or the
President by the Board of Directors, the Chief Executive Officer shall be the
Chief Executive Officer of the Corporation and, subject to the supervision of
the Board of Directors, shall, together with the President, have general
management and control of the business and property of the Corporation in the
ordinary course of its business with all such powers with respect to such
general management and control as may be reasonably incident to such
responsibilities, including, but not limited to, the power to
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employ, discharge, or suspend employees and agents of the Corporation, and to
fix the compensation of employees and agents. The Chief Executive Officer
may, without limitation, agree upon and execute all division and transfer
orders, bonds, contracts, and other obligations in the name of the
Corporation.
Section 8. PRESIDENT AND CHIEF OPERATING OFFICER. Unless and to the
extent that such powers and duties are expressly delegated to the Chairman of
the Board or the Chief Executive Officer by the Board of Directors, the
President and Chief Operating Officer shall be an executive officer of the
Corporation and, subject to the supervision of the Board of Directors, shall,
together with the Chairman of the Board and the Chief Executive Officer have
general management and control of the business and property of the
Corporation in the ordinary course of its business with all such powers with
respect to such general management and control as may be reasonably incident
to such responsibilities, including, but not limited to, the power to employ,
discharge, or suspend employees and agents of the Corporation, and to fix the
compensation of employees and agents. The President and Chief Operating
Officer may, without limitation, agree upon and execute all division and
transfer orders, bonds, contracts, and other obligations in the name of the
Corporation.
Section 9. VICE PRESIDENTS. Each Vice President shall have such powers
and duties as may be assigned to him by the Board of Directors, the Chairman
of the Board, or the President and (in order of their seniority as determined
by the Board of Directors or, in the absence of such determination, as
determined by the length of time they have held the office of Vice President)
shall exercise the powers of the President during that officer's absence or
inability to act. As between the Corporation and third parties, any action
taken by a Vice President in the performance of the duties of the President
shall be conclusive evidence of the absence or inability to act of the
President at the time such action was taken.
Section 10. TREASURER. The Treasurer shall have custody of the
Corporation's funds and securities, shall keep full and accurate account of
receipts and disbursements, shall deposit all monies and valuable effects in
the name and to the credit of the Corporation in such depository or
depositories as may be designated by the Board of Directors, and shall
perform such other duties as may be prescribed by the Board of Directors, the
Chairman of the Board, or the President.
Section 11. ASSISTANT TREASURER. Each Assistant Treasurer shall have
such powers and duties as may be assigned to him by the Board of Directors,
the Chairman of the Board, or the President. The Assistant Treasurers (in
the order of their seniority as determined by the Board of Directors or, in
the absence of such a determination, as determined by the length of time they
have held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
Section 12. SECRETARY. Except as otherwise provided in these Bylaws,
the Secretary shall keep the minutes of all meetings of the Board of
Directors and of the stockholders in books provided for that purpose, and he
shall attend to the giving and service of all notices. He may sign with the
Chairman of the Board or the President, in the name of the Corporation, all
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contracts of the Corporation and affix the seal of the Corporation thereto.
He may sign with the Chairman of the Board or the President all certificates
for shares of stock of the Corporation, and he shall have charge of the
certificate books, transfer books, and stock papers as the Board of Directors
may direct, all of which shall at all reasonable times be open to inspection
by any director upon application at the office of the Corporation during
business hours. He shall in general perform all duties incident to the
office of the Secretary, subject to the control of the Board of Directors,
the Chairman of the Board, and the President.
Section 13. ASSISTANT SECRETARIES. Each Assistant Secretary shall have
such powers and duties as may be assigned to him by the Board of Directors,
the Chairman of the Board, or the President. The Assistant Secretaries (in
the order of their seniority as determined by the Board of Directors or, in
the absence of such a determination, as determined by the length of time they
have held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. CONTRACTS. The Board may authorize any officer or officers,
agent or agents, in the name and on behalf of the Corporation, to enter into
any contract or to execute and deliver any instrument, which authorization
may be general or confined to specific instances; and, unless so authorized
by the Board, no agent or employee who is not an officer 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 pecuniarily for any purpose or for
any amount.
Section 2. CHECKS, ETC. All checks, drafts, bills of exchange or other
orders for the payment of money out of the funds of the Corporation, and all
notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation in such manner as shall from
time to time be authorized by the Board, which authorization may be general
or confined to specific instances.
Section 3. LOANS. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. All bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation issued for such loans shall be
made, executed and delivered as the Board shall authorize.
Section 4. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the
Corporation in such banks, trust companies or other depositaries as may be
selected by or in the manner designated by the Board. The Board or its
designees may make such special rules and regulations with respect to such
bank accounts, not inconsistent with the provisions of these Bylaws, as may
be deemed expedient.
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ARTICLE VII
CAPITAL STOCK
Section 1. STOCK CERTIFICATES. Each stockholder of the Corporation
shall be entitled to have, in such form as shall be approved by the Board, a
certificate or certificates signed by the Chairman of the Board or the
President and by either the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary (except that, when any such certificate
is countersigned by a transfer agent or registered by a registrar other than
the Corporation itself or any employee, the signatures of any such officers
may be facsimiles, engraved or printed), which may be sealed with the seal of
the Corporation (which seal may be a facsimile, engraved or printed),
certifying the number of shares of capital stock of the Corporation owned by
such stockholder. In case any officer who has signed or whose facsimile
signature has been placed upon any such certificate shall have ceased to be
such officer before such certificate is issued, such certificate may be
issued by the Corporation with the same effect as if he were such officer at
the date of its issue.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and 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 which the Corporation shall
issue to represent such class or series of stock; provided that, except as
otherwise stated in Section 202 of the DGCL, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which 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, designations, preferences and
relative, participating, option or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights.
Section 2. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall
prepare and make or cause to have prepared or made, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing
the address of each stockholder and the number of shares registered in the
name of each stockholder. 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 of the Corporation who is present.
Section 3. STOCK LEDGER. The stock ledger of the Corporation shall be
the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 2 of this Article VII or the books
and records of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
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Section 4. TRANSFERS OF CAPITAL STOCK. Transfers of shares of capital
stock of the Corporation shall be made only on the stock record of the
Corporation by the holder of record thereof or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation or the transfer agent thereof, and only on surrender of the
certificate or certificates representing such shares, properly endorsed or
accompanied by a duly executed stock transfer power. The Board may make such
additional rules and regulations as it may deem expedient concerning the
issue and transfer of certificates representing shares or uncertificated
shares of the capital stock of the Corporation.
Section 5. LOST CERTIFICATES. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to give the Corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation with respect to the certificate alleged to have
been lost, stolen or destroyed or the issuance of such new certificate.
Section 6. FIXING OF RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of
any dividends 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 may fix, in
advance, a record date, which record date shall (i) not precede the date upon
which the resolution fixing the record date is adopted by the Board and (ii)
not be more than sixty days nor less than ten days before the date of such
meeting, nor more than sixty days prior to any other action. 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 7. BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner, and shall not
be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
ARTICLE VIII
DIVIDENDS
Section 1. DECLARATION. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
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Section 2. RESERVE. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies or
for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the Corporation, and the Directors may modify
or abolish any such reserve in the manner in which it was created.
ARTICLE IX
INDEMNIFICATION
Section 1. INDEMNIFICATION. The Corporation shall indemnify to the full
extent authorized or permitted by Section 145 of the DGCL any person (his
heirs, executors and administrators) made, or threatened to be made, a party
to any action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a Director or officer
of the Corporation or by reason of the fact that as such Director or officer
at the request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
in any capacity. The Corporation may indemnify to the full extent authorized
or permitted by Section 145 of the DGCL any person (his heirs, executors and
administrators) made, or threatened to be made, a party to any action, suit
or proceeding (whether civil, criminal, administrative or investigative) by
reason of the fact that he is or was an employee or agent of the Corporation
or by reason of the fact that as such employee or agent, at the request of
the Corporation, is or was serving any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, in any capacity.
Nothing contained herein shall affect any rights to indemnification to which
Directors, officers, employees and agents of the Corporation may be entitled
by law.
Section 2. ADVANCEMENT OF EXPENSES. Expenses (including attorneys'
fees) incurred by an officer or Director of the Corporation in defending any
civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors upon
receipt of an undertaking by or on behalf of such Director or officer to
repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized in this Article
IX. Such expenses incurred by employees and agents of the Corporation other
than Directors and officers may be paid upon such terms and conditions, if
any, as the Board of Directors deems appropriate.
Section 3. NON-EXCLUSIVITY. The indemnification and advancement of
expenses provided for hereby shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of expenses
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested Directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
Section 4. 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
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is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any liability asserted
against him and incurred by him in any such capacity, arising out of his
status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the provisions of this Article IX.
Section 5. CONTINUITY. The indemnification and advancement of expenses
provided for in this Article IX shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
Director, officer, employee or agent of the Corporation and shall inure to
the benefit of the heirs, executors and administrators of such a person.
ARTICLE X
SEAL
The seal of the Corporation shall be such as from time to time may be
approved by the Board of Directors.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required by law, the Certificate of Incorporation
or these Bylaws to be given to any Director, member of a committee or
stockholder, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein,
shall constitute a waiver of notice of such meeting, except when the person
attends a meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the stockholders,
Directors, or members of a committee of Directors need be specified in any
written waiver of notice unless so required by the Certificate of
Incorporation or these Bylaws.
ARTICLE XII
AMENDMENTS
Subject to the Certificate of Incorporation and applicable law, these
Bylaws or any of them may be amended or supplemented in any respect at any
time, either (a) at any meeting of stockholders, provided that any amendment
or supplement proposed to be acted upon at any such meeting shall have been
described or referred to in the notice of such meeting, or (b) at any meeting
of the Board, provided that any amendment or supplement proposed to be acted
upon at any such meeting shall have been described or referred to in the
notice of such meeting or an announcement with respect thereto shall have
been made at the last previous Board meeting, and provided further that no
amendment or supplement adopted by the Board shall vary or conflict with any
amendment or supplement adopted by the stockholders.
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I, the undersigned, being the Secretary of the Corporation, do hereby
certify that the foregoing are the Bylaws of the Corporation, as adopted by
the Board of Directors of the Corporation as of May 30, 2001.
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Roger A. Crabb
Legal Counsel & Secretary
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