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Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
COLLEGIS, INC.
ARTICLE I
STOCKHOLDERS MEETINGS
Section 1.1. ANNUAL MEETINGS.
(a) An annual meeting of stockholders shall be held for the election of
directors at such date, time and place as may be fixed by resolution of the
Board of Directors from time to time. Subject to paragraph (b) of this Section
1.1, any other proper business may be transacted at an annual meeting.
(b) Only such business shall be conducted at an annual meeting of
stockholders as shall have been properly brought before the meeting. For
business to be properly brought before the meeting, it must be: (i) authorized
by the Board of Directors and specified in the notice, or a supplemental notice,
of the meeting, (ii) otherwise brought before the meeting by or at the direction
of the Board of Directors or the chairman of the meeting or (iii) otherwise
properly brought before the meeting by a stockholder. For business to be
properly brought before an annual meeting by a stockholder, the stockholder must
have given written notice thereof to the Secretary, delivered or mailed to and
received at the principal executive offices of the Corporation not less than 60
days nor more than 90 days prior to the meeting; PROVIDED, that in the event the
annual meeting is called for a date that is not within thirty (30) days before
or after such anniversary date, notice by the stockholder in order to be timely
must be received not later than the close of business on the tenth day following
the date on which notice of the date of the annual meeting was mailed to
stockholders or made public, whichever first occurs. A stockholder's notice to
the Secretary shall set forth as to each item of business the stockholder
proposes to bring before the meeting (1) a brief description of such item and
the reasons for conducting such business at the meeting, (2) the name and
address, as they appear on the Corporation's records, of the stockholder
proposing such business, (3) the class and number of shares of stock of the
Corporation which are beneficially owned by the stockholder (for purposes of the
regulations under Sections 13 and 14 of the Securities Exchange Act of 1934, as
amended) and (4) any material interest of the stockholder in such business. No
business shall be conducted at any annual meeting except in accordance with the
procedures set forth in this paragraph (b). The chairman of the meeting at which
any business is proposed by a stockholder shall, if the facts warrant, determine
and declare to the meeting that such business was not properly brought before
the meeting in accordance with the provisions of this paragraph (b), and, in
such event, the business not properly before the meeting shall not be
transacted.
Section 1.2. SPECIAL MEETINGS. Special meetings of stockholders for any
purpose or purposes may be called at any time only by the Chairman of the Board,
if any, or the President, and shall be called by the President or the Secretary
at the written request of a majority of the Board of Directors, and by no other
person. The business transacted at a special meeting of
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stockholders shall be limited to the purpose or purposes for which such meeting
is called, except as otherwise determined by the Board of Directors or the
chairman of the meeting.
Section 1.3. NOTICE OF MEETINGS. A written notice of each annual or
special meeting of stockholders shall be given stating the place, date and time
of the meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Unless otherwise provided by law, the Amended
and Restated Certificate of Incorporation or these Amended and Restated By-Laws,
such notice of meeting shall be given not less than 10 nor more than 60 days
before the date of the meeting to each stockholder of record entitled to vote at
such meeting. If mailed, such notice shall be deemed to be given when deposited
in the mail, postage prepaid, directed to the stockholder at such stockholder's
address as it appears on the records of the Corporation.
Section 1.4. ADJOURNMENTS. Any annual or special meeting of
stockholders may be adjourned from time to time to reconvene at the same or some
other place, and notice need not be given of any such adjourned meeting if the
date, time and place thereof are announced at the meeting at which the
adjournment is taken. At the adjourned meeting any business may be transacted
which might have been transacted at the original meeting. If the adjournment is
for more than 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 adjourned meeting in
accordance with Section 1.3.
Section 1.5. QUORUM. Except as otherwise provided by law, the Amended
and Restated Certificate of Incorporation or these Amended and Restated By-Laws,
the presence in person or by proxy of the holders of stock having a majority of
the votes which could be cast by the holders of all outstanding stock entitled
to vote at the meeting shall constitute a quorum at each meeting of
stockholders. In the absence of a quorum, the stockholders so present may, by
the affirmative vote of the holders of stock having a majority of the votes
which could be cast by all such holders, adjourn the meeting from time to time
in the manner provided in Section 1.4 until a quorum is present. If a quorum is
present when a meeting is convened, the subsequent withdrawal of stockholders,
even though less than a quorum remains, shall not affect the ability of the
remaining stockholders lawfully to transact business.
Section 1.6. ORGANIZATION. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or if there is none or in his or her
absence, by the President, or in his or her absence, by a chairman designated by
the Board of Directors, or in the absence of such designation by a chairman
chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in his or her absence the chairman of the meeting may appoint any person to act
as secretary of the meeting.
Section 1.7. VOTING.
(a) Except as otherwise provided by the Amended and Restated
Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
such stockholder which has voting power on the matter in question.
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(b) Voting at meetings of stockholders need not be by written ballot.
Unless otherwise provided in the Amended and Restated Certificate of
Incorporation, directors shall be elected by a plurality of the votes cast in
the election of directors. Each other question shall, unless otherwise provided
by law, the Amended and Restated Certificate of Incorporation or these Amended
and Restated By-Laws, be decided by the vote of the holders of stock having a
majority of the votes which could be cast by the holders of all stock entitled
to vote on such question which are present in person or by proxy at the meeting.
(c) Stock of the Corporation standing in the name of another
corporation and entitled to vote may be voted by such officer, agent or proxy as
the Amended and Restated By-Laws or other internal regulations of such other
corporation may prescribe or, in the absence of such provision, as the board of
directors or comparable body of such other corporation may determine.
(d) Stock of the Corporation standing in the name of a deceased person,
a minor, an incompetent or a debtor in a case under Title 11, United States
Code, and entitled to vote may be voted by an administrator, executor, guardian,
conservator, debtor-in-possession or trustee, as the case may be, either in
person or by proxy, without transfer of such shares into the name of the
official or other person so voting.
(e) A stockholder whose voting stock of the Corporation is pledged
shall be entitled to vote such stock unless on the transfer records of the
Corporation the pledgor has expressly empowered the pledgee to vote such shares,
in which case only the pledgee, or such pledgee's proxy, may represent such
shares and vote thereon.
(f) If voting stock is held 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 have
the same fiduciary relationship respecting the same shares, unless the Secretary
is given written notice to the contrary and is furnished with a copy of the
instrument or order appointing them or creating the relationship wherein it is
so provided, their acts with respect to voting shall have the following effect:
(i) if only one votes, such act binds all; (ii) if more than one votes, the act
of the majority so voting binds all; and (iii) if more than one votes, but the
vote is evenly split on any particular matter each faction may vote such stock
proportionally, or any person voting the shares, or a beneficiary, if any, may
apply to the Court of Chancery of the State of Delaware or such other court as
may have jurisdiction to appoint an additional person to act with the persons so
voting the stock, which shall then be voted as determined by a majority of such
persons and the person appointed by such Court. If the instrument so filed shows
that any such tenancy is held in unequal interests, a majority or even split for
the purpose of this subsection shall be a majority or even split in interest.
(g) Stock of the Corporation belonging to the Corporation, or to
another corporation a majority of the shares entitled to vote in the election of
directors of which are held by the Corporation, shall not be voted at any
meeting of stockholders and shall not be counted in the total number of
outstanding shares for the purpose of determining whether a quorum is present.
Nothing in this Section 1.7 shall limit the right of the Corporation to vote
shares of stock of the Corporation held by it in a fiduciary capacity.
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Section 1.8. PROXIES.
(a) Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for such stockholder by proxy filed
with the Secretary before or at the time of the meeting. No such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A stockholder may
revoke any proxy that is not irrevocable by attending the meeting and voting in
person or by filing with the Secretary an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date.
(b) A stockholder may authorize another person or persons to act for
such stockholder as proxy (i) by executing a writing authorizing such person or
persons to act as such, which execution may be accomplished by such stockholder
or such stockholder's authorized officer, director, partner, employee or agent
(or, if the stock is held in a trust or estate, by a trustee, executor or
administrator thereof) signing such writing or causing his or her signature to
be affixed to such writing by any reasonable means, including, but not limited
to, facsimile signature, or (ii) by transmitting or authorizing the transmission
of a telegram, cablegram, telecopy or other means of electronic transmission (a
"Transmission") to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
Transmission; provided that any such Transmission must either set forth or be
submitted with information from which it can be determined that such
Transmission was authorized by such stockholder.
(c) Any inspector or inspectors appointed pursuant to Section 1.9 shall
examine Transmissions to determine if they are valid. If no inspector or
inspectors are so appointed, the Secretary or such other person or persons as
shall be appointed from time to time by the Board of Directors shall examine
Transmissions to determine if they are valid. If it is determined a Transmission
is valid, the person or persons making that determination shall specify the
information upon which such person or persons relied. Any copy, facsimile
telecommunication or other reliable reproduction of such a writing or
Transmission may be substituted or used in lieu of the original writing or
Transmission for any and all purposes for which the original writing or
Transmission could be used; provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or Transmission.
Section 1.9. VOTING PROCEDURES AND INSPECTORS OF ELECTIONS.
(a) The Board of Directors shall, in advance of any meeting of
stockholders, appoint one or more inspectors (individually an "Inspector" and
collectively the "Inspectors") to act at such meeting and make a written report
thereof. The Board of Directors may designate one or more persons as alternate
Inspectors to replace any Inspector who shall fail to act. If no Inspector or
alternate is able to act at such meeting, the chairman of the meeting shall
appoint one or more other persons to act as Inspectors. Each Inspector, before
entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of Inspector with strict impartiality and
according to the best of his or her ability.
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(b) The Inspectors shall (i) ascertain the number of shares of stock of
the Corporation outstanding and the voting power of each, (ii) determine the
number of shares of stock of the Corporation present in person or by proxy at
such meeting 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 the Inspectors and
(v) certify their determination of the number of such shares present in person
or by proxy at such meeting and their count of all votes and ballots. The
Inspectors may appoint or retain other persons or entities to assist them in the
performance of their duties.
(c) The date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at such meeting. No ballots, proxies or votes, nor any revocations
thereof or changes thereto, shall be accepted by the Inspectors after the
closing of the polls unless the Court of Chancery of the State of Delaware upon
application by any stockholder shall determine otherwise.
(d) In determining the validity and counting of proxies and ballots,
the Inspectors shall be limited to an examination of the proxies, any envelopes
submitted with such proxies, any information referred to in paragraphs (b) and
(c) of Section 1.8, ballots and the regular books and records of the
Corporation, except that the Inspectors may consider other reliable information
for the limited purpose of reconciling proxies and ballots submitted by or on
behalf of banks, brokers, their nominees or similar persons which represent more
votes than the holder of a proxy is authorized by a stockholder of record to
cast or more votes than such stockholder holds of record. If the Inspectors
consider other reliable information for the limited purpose permitted herein,
the Inspectors, at the time they make their certification pursuant to paragraph
(b) of this Section 1.9, shall specify the precise information considered by
them, including the person or persons from whom such information was obtained,
when and the means by which such information was obtained and the basis for the
Inspectors' belief that such information is accurate and reliable.
Section 1.10. FIXING DATE OF DETERMINATION OF STOCKHOLDERS OF RECORD.
(a) In order that the Corporation may determine the stockholders
entitled (i) to notice of or to vote at any meeting of stockholders or any
adjournment thereof, (ii) to receive payment of any dividend or other
distribution or allotment of any rights, (iii) to exercise any rights in respect
of any change, conversion or exchange of stock or (iv) to take, receive or
participate in any other action, the Board of Directors may fix a record date,
which shall not be earlier than the date upon which the resolution fixing the
record date is adopted by the Board of Directors and which (1) in the case of a
determination of stockholders entitled to notice of or to vote at any meeting of
stockholders or adjournment thereof, shall, unless otherwise required by law, be
not more than 60 nor less than 10 days before the date of such meeting; and (2)
in the case of any other action, shall be not more than 60 days before such
action.
(b) If no record date is fixed, (i) 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; and (ii) the record date for
determining
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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, but the Board of Directors may fix a new record date for the adjourned
meeting.
Section 1.11. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The Secretary
shall prepare, at least 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 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 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. The stock ledger shall be the only evidence as
to who are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1. POWERS; NUMBER; QUALIFICATIONS. The business and affairs
of the Corporation shall be managed by or under the direction of the Board of
Directors, except as otherwise required by law or provided in the Amended and
Restated Certificate of Incorporation. The Board of Directors shall consist of
not less than one nor more than 15 directors, the number thereof to be
determined from time to time by resolution of the Board of Directors. Directors
need not be stockholders.
Section 2.2. ELECTION; RESIGNATION; VACANCIES.
(a) At each annual meeting at which the term of office of a class of
directors expires, the stockholders shall elect directors of such class each to
hold office until the annual meeting at which the terms of office of such class
of directors expire and the election and qualification of his or her successor,
or until his earlier death, resignation or removal.
(b) Only persons who are nominated in accordance with the procedures
set forth in this paragraph (b) shall be eligible for election as directors of
the Corporation. Nominations of persons for election to the Board of Directors
may be made at a meeting of stockholders by the Board of Directors or by any
stockholder of the Corporation entitled to vote in the election of directors at
the meeting who complies with the notice procedures set forth in this paragraph
(b). Any nomination by a stockholder must be made by written notice to the
Secretary delivered or mailed to and received at the principal executive offices
of the Corporation (i) not less than 60 days nor more than 90 days prior to the
meeting, or (ii) if an annual meeting is called for a date that is not within
thirty (30) days before or after the anniversary date of the previous annual
meeting, notice by the stockholder in order to be timely must be received not
later than the close
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of business on the tenth day following the date on which notice of the date of
the annual meeting was mailed to stockholders or made public, whichever comes
first. A stockholder's notice to the Secretary shall set forth (x) as to each
person whom the stockholder proposes to nominate for election or re-election as
a director: (1) the name, age, business address and residence address of such
person, (2) the principal occupation or employment of such person, (3) the class
and number of shares of stock of the Corporation which are beneficially owned by
such person (for the purposes of the regulations under Sections 13 and 14 of the
Securities Exchange Act of 1934, as amended), and (4) any other information
relating to such person that would be required to be disclosed in solicitations
of proxies for the election of such person as a director of the Corporation
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, and such person's written consent to being named in any proxy statement
as a nominee and to serving as a director if elected; and (y) as to the
stockholder giving notice (5) the name and address, as they appear on the
Corporation's records, of such stockholder and (6) the class and number of
shares of stock of the Corporation which are beneficially owned by such
stockholder (determined as provided in clause (x)(3) above). At the request of
the Board of Directors any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary that information required
to be set forth in a stockholder's notice of nomination which pertains to the
nominee. The chairman of the meeting at which a stockholder nomination is
presented shall, if the facts warrant, determine and declare to the meeting that
such nomination was not made in accordance with the procedures prescribed by
this paragraph (b), and, in such event, the defective nomination shall be
disregarded.
(c) Any director may resign at any time by giving written notice to the
Chairman of the Board, if any, the President or the Secretary. Unless otherwise
stated in a notice of resignation, it shall take effect when received by the
officer to whom it is directed, without any need for its acceptance.
(d) Any newly created directorship or any vacancy occurring in the
Board of Directors for any reason may be filled by a majority of the remaining
directors, although less than a quorum, or a sole remaining director. Each
director elected to replace a former director shall hold office until the
expiration of the term of office of the director whom he or she has replaced and
the election and qualification of his or her successor, or until his or her
earlier death, resignation or removal. A director elected to fill a newly
created directorship shall serve until the annual meeting at which the terms of
office of the class of directors to which he or she is assigned expire and the
election and qualification of his or her successor, or until his or her earlier
death, resignation or removal.
Section 2.3. REGULAR MEETINGS. A regular annual meeting of the Board of
Directors shall be held, without call or notice, immediately after and at the
same place as the annual meeting of stockholders, for the purpose of organizing
the Board of Directors, electing officers and transacting any other business
that may properly come before such meeting. Additional regular meetings of the
Board of Directors may be held without call or notice at such times as shall be
fixed by resolution of the Board of Directors.
Section 2.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, if any, or the President
and shall be called by the President or the Secretary at the request in writing
of a majority of the Board of Directors. Notice of a special
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meeting of the Board of Directors shall be given by the person or persons
calling the meeting at least 24 hours before the special meeting. The purpose or
purposes of a special meeting need not be stated in the call or notice.
Section 2.5. ORGANIZATION. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or if there is none or in
his or her absence, by the President, or in his or her absence by a chairman
chosen at the meeting. The Secretary shall act as secretary of the meeting, but
in his or her absence the chairman of the meeting may appoint any person to act
as secretary of the meeting. A majority of the directors present at a meeting,
whether or not they constitute a quorum, may adjourn such meeting to any other
date, time or place without notice other than announcement at the meeting.
Section 2.6. QUORUM; VOTE REQUIRED FOR ACTION. At all meetings of the
Board of Directors a majority of the whole Board of Directors shall constitute a
quorum for the transaction of business. Unless the Amended and Restated
Certificate of Incorporation or these Amended and Restated By-Laws otherwise
provide, 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.
Section 2.7. COMMITTEES. The Board of Directors may, by resolution
passed by a majority of the whole Board of Directors, designate one or more
committees, each committee to consist of one or more directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of the committee, the member or members present at any meeting and not
disqualified from voting, whether or not a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent permitted
by law and provided in the resolution of the Board of Directors designating such
committee, or an amendment to such resolution, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the
business and affairs of the Corporation, and may authorize the seal of the
corporation to be affixed to all papers which may require it.
Section 2.8. TELEPHONIC MEETINGS. Directors, or any committee of
directors designated by the Board of Directors, may participate in a meeting of
the Board of Directors or such committee by means of conference telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other, and participation in a meeting pursuant to this
Section 2.8 shall constitute presence in person at such meeting.
Section 2.9. INFORMAL ACTION BY DIRECTORS. Unless otherwise restricted
by the Amended and Restated Certificate of Incorporation or these Amended and
Restated By-Laws, any action required or permitted to be taken at any meeting of
the Board of Directors, or of any committee thereof, may be taken without a
meeting if all members of the Board of Directors or such committee, as the case
may be, consent thereto in writing (which may be in counterparts), and the
written consent or consents refiled with the minutes of proceedings of the Board
of Directors or such committee.
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Section 2.10. COMMITTEE RULES. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules
each such committee shall conduct its business in the same manner as the Board
of Directors conducts its business pursuant to this Article II.
Section 2.11 RELIANCE UPON RECORDS. Every director, and every member of
any committee of the Board of Directors, shall, in the performance of his or her
duties, be fully protected in relying in good faith upon the records of the
Corporation and upon such information, opinions, reports or statements presented
to the Corporation by any of its officers or employees, or committees of the
Board of Directors, or by any other person as to matters the director or member
reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation, including, but not limited to, such records, information, opinions,
reports or statements as to the value and amount of the assets, liabilities
and/or net profits of the Corporation, or any other facts pertinent to the
existence and amount of surplus or other funds from which dividends might
properly be declared and paid, or with which the Corporation's capital stock
might properly be purchased or redeemed.
Section 2.12 INTERESTED DIRECTORS. A director who is directly or
indirectly a party to a contract or transaction with the Corporation, or is a
director or officer of or has a financial interest in any other corporation,
partnership, association or other organization which is a party to a contract or
transaction with the Corporation, may be counted in determining whether a quorum
is present at any meeting of the Board of Directors or a committee thereof at
which such contract or transaction is considered or authorized, and such
director may participate in such meeting and vote on such authorization to the
extent permitted by applicable law, including Section 144 of the General
Corporation Law of the State of Delaware.
Section 2.13 COMPENSATION. Unless otherwise restricted by the Amended
and Restated Certificate of Incorporation, the Board of Directors shall have the
authority to fix the compensation of directors. The directors shall be paid
their reasonable expenses, if any, of attendance at each meeting of the Board of
Directors or a committee thereof and may be paid a fixed sum for attendance at
each such meeting and an annual retainer or salary for services as a director or
committee member. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
Section 2.14 PRESUMPTION OF ASSENT. Unless otherwise provided by the
laws of the State of Delaware, a director who is present at a meeting of the
Board of Directors or a committee thereof at which action is taken on any
matter shall be presumed to have assented to the action taken unless his or
her dissent shall be entered in the minutes of such meeting or unless he or
she shall file his or her written dissent to such action with the person
acting as secretary of such meeting before the adjournment thereof or shall
forward such dissent by registered mail to the Secretary immediately after
the adjournment of such meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
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ARTICLE III
OFFICERS
Section 3.1. EXECUTIVE OFFICERS; ELECTION; QUALIFICATION; TERM OF
OFFICE. The Board of Directors may elect, if it so determines, a Chairman of the
Board from among its members. The Board of Directors shall elect a President and
a Secretary and may also elect one or more Executive Vice Presidents, Senior
Vice Presidents, Vice Presidents, Chief Executive Officer, Assistant Secretaries
or Assistant Treasurers. Any number of offices may be held by the same person.
Each officer shall hold office until the first meeting of the Board of Directors
after the annual meeting of stockholders next succeeding his or her election,
and until his or her successor is elected and qualified or until his or her
earlier death, resignation or removal.
Section 3.2. RESIGNATION; REMOVAL; VACANCIES. Any officer may resign at
any time by giving written notice to the Chairman of the Board, if any, the
President or the Secretary. Unless otherwise stated in a notice of resignation,
it shall take effect when received by the officer to whom it is directed,
without any need for its acceptance. The Board of Directors may remove any
officer with or without cause at any time, but such removal shall be without
prejudice to the contractual rights of such officer, if any, with the
Corporation. A vacancy occurring in any office of the Corporation may be filled
for the unexpired portion of the term thereof by the Board of Directors at any
regular or special meeting.
Section 3.3. POWERS AND DUTIES OF EXECUTIVE OFFICERS. The officers of
the Corporation shall have such powers and duties in the management of the
Corporation as may be prescribed by the Board of Directors and, to the extent
not so provided, as generally pertain to their respective offices, subject to
the control of the Board of Directors. The Board of Directors may require any
officer, agent or employee to give security for the faithful performance of his
or her duties.
Section 3.4. CHIEF EXECUTIVE OFFICER. Unless the Board of Directors
elects a Chairman of the Board who is designated as such, the President shall be
the Chief Executive Officer of the Corporation and shall in general supervise
and control all of the business affairs of the Corporation, subject to the
direction of the Board of Directors. The President may execute, in the name and
on behalf of the Corporation, any deeds, mortgages, bonds, contracts or other
instruments which the Board of Directors or a committee thereof has authorized
to be executed, except in cases where the execution shall have been expressly
delegated by the Board of Directors or a committee thereof to some other officer
or agent of the Corporation.
The President may appoint persons assigned to a particular division or
other business unit of the Corporation as officers of such division or business
unit and having such titles as the President shall deem appropriate; provided
that the president or other equivalent senior officer of such division or
business unit shall be elected by the Board of Directors. Any such officer
appointed by the President may be removed by the President whenever in his or
her judgment the best interests of the Corporation would be served thereby. The
term of office, compensation, powers and duties and other terms of employment of
appointed officers shall be such as the
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President may from time to time deem proper, and the authority of such officers
shall be limited to acts pertaining to the business of such division or business
unit.
Section 3.5. SECRETARY. In addition to such other duties, if any, as
may be assigned to the Secretary by the Board of Directors, the Chairman of the
Board, if any, or the President, the Secretary shall (i) keep the minutes of
proceedings of the stockholders, the Board of Directors and any committee of the
Board of Directors in one or more books provided for that purpose; (ii) see that
all notices are duly given in accordance with the provisions of these Amended
and Restated By-Laws or as required by law; (iii) be the custodian of the
records and seal of the Corporation; (iv) affix or cause to be affixed the seal
of the Corporation or a facsimile thereof, and attest the seal by his or her
signature, to all certificates for shares of stock of the Corporation and to all
other documents the execution of which under seal is authorized by the Board of
Directors; and (v) unless such duties have been delegated by the Board of
Directors to a transfer agent of the Corporation, keep or cause to be kept a
register of the name and address of each stockholder, as the same shall be
furnished to the Secretary by such stockholder, and have general charge of the
stock transfer records of the Corporation.
ARTICLE IV
STOCK CERTIFICATES AND TRANSFERS
Section 4.1. CERTIFICATE. Every holder of stock shall be entitled to
have a certificate signed by or in the name of the Corporation by the Chairman
of the Board, if any, or the President or a Vice President, and by the Secretary
or an Assistant Secretary, of the Corporation, certifying the number of shares
owned by such stockholder in the Corporation. Any of or all the signatures on
the certificate may be facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have 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 such officer, transfer agent or registrar continued to be such
at the date of issue.
Section 4.2. LOST, STOLEN OR DESTROYED CERTIFICATES; ISSUANCE OF NEW
CERTIFICATES. The Corporation may issue a new certificate for stock in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such stockholder's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 4.3 TRANSFERS OF STOCK. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for stock of the
Corporation duly endorsed or accompanied by proper evidence of succession,
assignment or authority to transfer or, if the relevant stock certificate is
claimed to have been lost, stolen or destroyed, upon compliance with the
provisions of Section 4.2, and upon payment of applicable taxes with respect to
such transfer, and in compliance with any restrictions on transfer applicable to
such stock certificate or the shares represented thereby of which the
Corporation shall have notice and subject to such rules and regulations as the
Board of Directors may from time to time deem advisable concerning the
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transfer and registration of stock certificates, the Corporation shall issue a
new certificate or certificates for such stock to the person entitled thereto,
cancel the old certificate and record the transaction upon its books. Transfers
of stock shall be made only on the books of the Corporation by the registered
holder thereof or by such holder's attorney or successor duly authorized as
evidenced by documents filed with the Secretary or transfer agent of the
Corporation. Whenever any transfer of stock shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of transfer
if, when the certificate or certificates representing such stock are presented
to the Corporation for transfer, both the transferor and transferee request the
Corporation to do so.
Section 4.4 STOCKHOLDERS OF RECORD. The Corporation shall be entitled
to treat the holder of record of any stock of the Corporation as the holder
thereof and shall not be bound to recognize any equitable or other claim to or
interest in such stock on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise required by the laws
of the State of Delaware.
ARTICLE V
NOTICES
Section 5.1. MANNER OF NOTICE. Except as otherwise provided by law, the
Amended and Restated Certificate of Incorporation or these Amended and Restated
By-Laws, whenever notice is required to be given to any stockholder, director or
member of any committee of the Board of Directors, such notice may be given by
personal delivery or by depositing it, in a sealed envelope, in the United
States mails, first class, postage prepaid, addressed, or by delivering it to a
telegraph company, charges prepaid, for transmission, or by transmitting it via
telecopier, to such stockholder, director or member, either at the address of
such stockholder, director or member as it appears on the records of the
Corporation or, in the case of such a director or member, at his or her business
address; and such notice shall be deemed to be given at the time when it is thus
personally delivered, deposited, delivered or transmitted, as the case may be.
Such requirement for notice shall also be deemed satisfied, except in the case
of stockholder meetings, if actual notice is received orally or by other writing
by the person entitled thereto as far in advance of the event with respect to
which notice is being given as the minimum notice period required by law or
these Amended and Restated By-Laws.
Section 5.2. DISPENSATION WITH NOTICE.
(a) Whenever notice is required to be given by law, the Amended and
Restated Certificate of Incorporation or these Amended and Restated By-Laws to
any stockholder to whom (i) notice of two consecutive annual meetings of
stockholders, and all notices of meetings of stockholders or of the taking of
action by stockholders by written consent without a meeting to such stockholder
during the period between such two consecutive annual meetings, or (ii) all, and
at least two, payments (if sent by first class mail) of dividends or interest on
securities of the Corporation during a 12-month period, have been mailed
addressed to such stockholder at the address of such stockholder as shown on the
records of the Corporation and have been returned undeliverable, the giving of
such notice to such stockholder shall not be required. Any action or meeting
which shall be taken or held without notice to such stockholder shall have the
same
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force and effect as if such notice had been duly given. If any such stockholder
shall deliver to the Corporation a written notice setting forth the then current
address of such stockholder, the requirement that notice be given to such
stockholder shall be reinstated.
(b) Whenever notice is required to be given by law, the Amended and
Restated Certificate of Incorporation or these Amended and Restated By-Laws to
any person with whom communication is unlawful, the giving of such notice to
such person shall not be required, and there shall be no duty to apply to any
governmental authority or agency for a license or permit to give such notice to
such person. Any action or meeting which shall be taken or held without notice
to any such person with whom communication is unlawful shall have the same force
and effect as if such notice had been duly given.
Section 5.3. WAIVERS OF NOTICE. Any written waiver of notice, signed by
the person entitled to notice, whether before or after the time stated therein,
shall be deemed equivalent to 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 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 special meeting of the stockholders, directors, or members of a
committee or directors need be specified in any written waiver of notice.
ARTICLE VI
GENERAL
Section 6.1. FISCAL YEAR. The fiscal year of the Corporation shall
begin on January 1 and end on December 31 of each year.
Section 6.2. SEAL. The corporate seal shall have the name of the
Corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 6.3. FORM OF RECORDS. Any records maintained by the Corporation
in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of photographs,
microphotographs, or any other information storage device, provided that the
records so kept can be converted into clearly legible form within a reasonable
time. The Corporation shall so convert any records so kept upon the request of
any person entitled to inspect the same.
Section 6.4. INDEMNIFICATION.
(a) Each person who was or is a party or is threatened to be
made a party to or is involved in any action, suit or proceeding or alternative
dispute resolution procedure, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was a director or officer
serving at the request of the Corporation as a director, manager, officer,
partner, trustee, employee or agent of another corporation or of a partnership,
limited liability company, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, shall be indemnified and
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held harmless by the Corporation to the fullest extent authorized by the laws of
the State of Delaware as the same now or may hereafter exist (but, in the case
of any change, only to the extent that such change authorizes the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such change) against all costs, charges, expenses,
liabilities and losses (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of his or her heirs, executors and
administrators. Until such time as there has been a final judgment to the
contrary, a person shall be presumed to be entitled to be indemnified under this
Section 6.4(a). The right to indemnification conferred in this Section shall be
a contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition upon receipt by the Corporation of an undertaking, by or on behalf
of such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that the director or officer is not entitled to be
indemnified under this Section or otherwise. The Corporation may, by action of
its Board of Directors, provide indemnification to employees and agents of the
Corporation with the same scope and effect as the foregoing indemnification of
directors and officers.
(b) If a claim under subsection (a) of this Section is not
paid in full by the Corporation within thirty days after a written claim has
been received by the Corporation the claimant may at any time thereafter bring
suit against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall also be entitled to be paid
the expense of prosecuting such claim. It shall be a defense to any action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking has been tendered to the Corporation) that the claimant has failed
to meet a standard of conduct which makes it permissible to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is permissible in the circumstances because he or she has met such
standard of conduct, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such standard of conduct, nor the termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall be a defense to the action or create a
presumption that the claimant has failed to meet the required standard of
conduct.
(c) The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final disposition conferred
in this Section shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may maintain insurance, at its expense, to
protect itself and any director, manager, officer, partner, trustee, employee or
agent of the Corporation or another corporation, partnership, limited liability
company, joint venture, trust or other enterprise
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against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under Delaware law.
(e) To the extent that any director, officer, employee or
agent of the Corporation is by reason of such position, or a position with
another entity at the request of the Corporation, a witness in any proceeding,
he or she shall be indemnified against all costs and expenses actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
(f) Notwithstanding any amendment of this section which may
have been approved by the stockholders, this section may be added to, altered,
amended or repealed pursuant to Section 6.5 of these by-laws.
(g) Any amendment, repeal or modification of any provision of
this Section by the stockholders or the directors of the Corporation shall not
adversely affect any right or protection of a director or officer of the
Corporation existing at the time of such amendment, repeal or modification.
Section 6.5. AMENDMENT OF AMENDED AND RESTATED BY-LAWS. These Amended
and Restated By-Laws may be altered or repealed, and new Amended and Restated
By-Laws made, by the Board of Directors, but the stockholders may make
additional Amended and Restated By-Laws and may alter and repeal any Amended and
Restated By-Laws whether adopted by them or otherwise. In no event shall any of
the provisions of Sections 1.1, 1.2, 2.1, 2.2 or this Section 6.5 of these
Amended and Restated By-Laws be amended, altered or repealed without the vote of
the holders of at least two-thirds (2/3) of the Common Stock of the Corporation.
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