EXHIBIT 3.4
AMENDED AND RESTATED
BY-LAWS
OF
MARKETAXESS HOLDINGS INC.
ARTICLE I
OFFICES
SECTION 1. The registered office of the Corporation in the
State of Delaware shall be located at the principal place of business in said
state of the corporation or individual acting as the Corporation's registered
agent.
SECTION 2. The Corporation may have other offices, either
within or without the State of Delaware, at such place or places as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. All meetings of the stockholders for the election
of directors shall be held at such place as may be fixed from time to time by
the Board of Directors, or at such other place either within or without the
State of Delaware as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. Meetings of stockholders for
any other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
SECTION 2. Annual meetings of stockholders shall be held at
such date and time as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. At each annual meeting, the
stockholders shall elect directors and transact such other business as may
properly be brought before the meeting.
SECTION 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not fewer than ten (10) nor more than sixty (60) days
before the date of the meeting.
SECTION 4. The officer who has charge of the stock ledger of
the Corporation shall prepare and make available, at least ten (10) days before
every meeting of stockholders, a
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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 who is present.
SECTION 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the
certificate of incorporation, may only be called by the Chairman of the Board,
the Chief Executive Officer, the President or at the written request of a
majority of the members of the Board of Directors.
SECTION 6. Written notice of a special meeting stating the
place, date and time of the meeting and the purpose or purposes for which the
meeting is called, shall be given not fewer than ten (10) nor more than sixty
(60) days before the date of the meeting, to each stockholder entitled to vote
at such meeting.
SECTION 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
SECTION 8. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the chairman of the meeting, the
Chief Executive Officer, the President or the holders of a majority of the stock
the Corporation entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or
represented. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified. If the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
SECTION 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
SECTION 10. Unless otherwise provided in the certificate of
incorporation, each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three (3) years from its date, unless the proxy provides for a longer
period.
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SECTION 11. Unless otherwise provided in the certificate of
incorporation, the chairman of the meeting or the Chief Executive Officer may
adjourn a meeting of stockholders from time to time, without notice other than
announcement at the meeting. No notice of the time and place of an adjourned
meeting need be given except as required by law.
SECTION 12.
A. Annual Meetings of Stockholders.
1. Nominations of persons for election to the
Board of Directors and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders only (a) pursuant
to the Corporation's notice of meeting (or any supplement thereto), (b) by or at
the direction of the Board of Directors or (c) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this Section 12, who is entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 12.
2. For nominations or other business to be
properly brought before an annual meeting by a stockholder pursuant to clause
(c) of paragraph (A)(1) of this Section 12, the stockholder must have given
timely notice thereof in writing to the Secretary of the Corporation and such
other business must otherwise be a proper matter for stockholder action. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the one hundred twentieth (120th) day nor earlier than the close of
business on the one hundred fiftieth (150th) day prior to the first anniversary
of the date the Corporation first mailed its proxy materials for the preceding
year's annual meeting of stockholders; provided, however, that if either (x) the
date of the annual meeting is more than thirty (30) days before or more than
sixty (60) days after such anniversary date or (y) no annual meeting of
stockholders was held in the previous year, notice by the stockholder to be
timely must be so delivered not earlier than the close of business on the
ninetieth (90th) day prior to such annual meeting and not later than the close
of business on the later of the sixtieth (60th) day prior to such annual meeting
or the close of business on the tenth (10th) day following the date on which
notice of the date of the meeting is given to stockholders or made public,
whichever occurs first. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, the text of
the proposal or business (including the text of any resolutions proposed for
consideration and in the event that such business includes a proposal to amend
the By-laws of the Corporation, the language of the proposed amendment), the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the nomination or proposal is made; and (c) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (ii) the class and number
of
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shares of capital stock of the Corporation which are owned beneficially and of
record by such stockholder and such beneficial owner, (iii) a representation
that the stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at the
meeting to propose such business or nomination, and (iv) a representation
whether the stockholder or the beneficial owner, if any, intends or is part of a
group which intends (a) to deliver a proxy statement and/or form of proxy to
holders of at least the percentage of the Corporation's outstanding capital
stock required to approve or adopt the proposal or elect the nominee and/or (b)
otherwise to solicit proxies from stockholders in support of such proposal or
nomination. The foregoing notice requirements shall be deemed satisfied by a
stockholder if the stockholder has notified the corporation of his or her
intention to present a proposal at an annual meeting in compliance with Rule
14a-8 (or any successor thereof) promulgated under the Exchange Act and such
stockholder's proposal has been included in a proxy statement that has been
prepared by the corporation to solicit proxies for such annual meeting. The
Corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the Corporation.
3. Notwithstanding anything in the second
sentence of paragraph (A)(2) of this Section 12 to the contrary, in the event
that the number of directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement by the Corporation
naming all of the nominees for director or specifying the size of the increased
Board of Directors at least one hundred (100) days prior to the first
anniversary of the preceding year's annual meeting (or, if the annual meeting is
held more than thirty (30) days before or sixty (60) days after such anniversary
date, at least one hundred (100) days prior to such annual meeting), a
stockholder's notice required by this Section 12 shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
office of the Corporation not later than the close of business on the tenth
(10th) day following the day on which such public announcement is first made by
the Corporation.
B. Special Meetings of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time notice provided for in
this Section 12 is delivered to the Secretary of the Corporation, who is
entitled to vote at the meeting and upon such election, who complies with the
notice procedures set forth in this Section 12. If the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as the case may
be), for election to such position(s) as specified in the Corporation's notice
of meeting, if the stockholder's notice required by paragraph (A)(2) of this
Section 12 shall be delivered to the Secretary at the principal executive
offices of the Corporation not earlier than the close of business on the one
hundred twentieth (120th) day prior to such special meeting and not later than
the later of (x) the close of business of the ninetieth (90th) day prior to such
special meeting
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or (y) the close of business of the tenth (10th) day following the day on which
public announcement is first made of the date of such special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the
giving of a stockholder's notice as described above.
C. General.
1. Only such persons who are nominated in
accordance with the procedures set forth in this Section 12 shall be eligible to
be elected at an annual or special meeting of stockholders of the Corporation to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 12. Except as otherwise provided by
law, the certificate of incorporation or these by-laws, the chairman of the
meeting shall have the power and duty (a) to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed, as
the case may be, in accordance with the procedures set forth in this Section 12
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such stockholder's
representation as required by clause (A)(2)(c)(iv) of this Section 12) and (b)
if any proposed nomination or business was not made or proposed in compliance
with this Section 12, to declare that such nomination shall be disregarded or
that such proposed business shall not be transacted. Notwithstanding the
foregoing provisions of this Section 12(C), if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special
meeting of stockholders of the Corporation to present a nomination or business,
such nomination shall be disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such vote may have been
received by the Corporation.
2. The Board of Directors of the Corporation
shall be entitled to make such rules or regulations for the conduct of meetings
of stockholders as it shall deem necessary, appropriate, convenient or
desirable. Subject to such rules and regulations of the Board of Directors, if
any, the chairman of the meeting shall have the right and authority to prescribe
such rules, regulations and procedures, and to do all such acts as, in the
judgment of such chairman, are necessary, appropriate, convenient or desirable
for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit, restrictions on entry to the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comment by participants and regulation of the opening and closing
of the polls for balloting on matters which are to be voted on by ballot.
Unless, and to the extent, otherwise determined by the Board of Directors or the
chairman of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
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3. For purposes of this Section 12, "public
announcement" shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 and 15(d) of the Exchange Act.
4. Notwithstanding the foregoing provisions of
this Section 12, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth herein. Nothing in this Section 12 shall be
deemed to affect any rights (i) of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (ii) of the holders of any series of Preferred Stock to elect
directors pursuant to any applicable provisions of the certificate of
incorporation.
SECTION 13. Prior to the holding of each annual or special
meeting of the stockholders, one or more inspectors of election to serve thereat
shall be appointed by the Board of Directors, or, if the Board of Directors
shall not have made such appointment, by the chairman of the meeting, the Chief
Executive Officer or the President. If there shall be a failure to appoint an
inspector, or if, at any such meeting, the inspector or inspectors so appointed
shall be absent or shall fail to act or the office shall become vacated, the
chairman of the meeting may, and at the request of a stockholder present in
person and entitled to vote at such meeting shall, appoint such inspector or
inspectors of election to act thereat. The inspector or inspectors of election
so appointed to act at any meeting of the stockholders, before entering upon the
discharge of their duties, shall be sworn faithfully to execute the duties of
inspector at such meeting, with strict impartiality and according to the best of
his or her ability, and the oath so taken shall be subscribed by such inspector.
Such inspector or inspectors of election shall take charge of the polls, and,
after the voting on any question, shall make a certificate of the results of the
vote taken. No director or candidate for the office of director shall act as an
inspector of an election of directors. Inspectors need not be stockholders.
SECTION 14. Any action required or permitted to be taken at
any annual or special meeting of stockholders, including, without limitation,
election of directors, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted, and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall, to the
extent required by law, be given to those stockholders who have not consented in
writing and who, if the action had been taken at a meeting, would have been
entitled to notice of the meeting if the record date for such meeting had been
the date that written consents signed by a sufficient number of holders to take
the action were delivered to the corporation.
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ARTICLE III
DIRECTORS
SECTION 1. The business of the Corporation shall be managed by
or under the direction of its Board of Directors which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
SECTION 2. The number of directors which shall constitute the
whole Board of Directors shall be determined by resolution of the Board of
Directors or by the stockholders at the annual meeting of the stockholders,
except as provided in Section 2 of this Article. Directors need not be residents
of the State of Delaware or stockholders of the Corporation. No decrease in the
number of directors shall shorten the term of an incumbent director.
SECTION 3. At each annual meeting, members of the Board of
Directors shall be elected in the manner set forth in the Corporation's
certificate of incorporation, each of whom shall hold office until the next
annual meeting of stockholders or until his or her successor is duly elected and
qualified, subject to such director's earlier death, resignation,
disqualification or removal. Unless otherwise provided by law, any newly created
directorship or any vacancy occurring in the Board of Directors for any cause
shall be filled in the manner set forth in the Corporation's certificate of
incorporation, and each director so elected shall hold office until the
expiration of the term of office of the director whom he or she has replaced or
until his or her successor is elected and qualified.
SECTION 4. Any director, member of a committee or officer may
resign at any time. Such resignation shall be made in writing, and shall take
effect at the time specified therein, and if no time be specified, at the time
of its receipt by the Chief Executive Officer, the President or Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
MEETINGS OF THE BOARD OF DIRECTORS
SECTION 5. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
SECTION 6. An annual meeting of the Board of Directors shall
be held following the annual meeting of the stockholders of the Corporation for
the purposes of electing officers of the Corporation and the committees of the
Board of Directors and transacting any other business which may properly come
before the meeting. Notice of annual meetings of the Board of Directors need not
be given in order to legally constitute the meeting, provided a quorum shall be
present.
SECTION 7. Regular meetings of the Board of Directors may be
held at such dates, times and places as shall be determined by the Board of
Directors.
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SECTION 8. Special meetings of the Board of Directors may be
called by the Chairman of the Board, the Chief Executive Officer or the
President on two (2) days' notice to each director by mail or twenty-four (24)
hours notice to each director either personally or by telecopy; special meetings
shall be called by the Chairman of the Board, the Chief Executive Officer,
President or Secretary in like manner and on like notice on the written request
of two directors unless the Board of Directors consists of only one director, in
which case special meetings shall be called by the Chairman of the Board, the
Chief Executive Officer, the President or Secretary in like manner and on like
notice on the written request of the sole director. Notice of a meeting need not
be given to any director who signs a waiver of notice, whether before or after
the meeting. The attendance of any director at a meeting without protesting
prior to the meeting or at its commencement the lack of notice of such meeting,
shall constitute a waiver of notice by such director.
SECTION 9. At all meetings of the Board of Directors, a
majority of the directors fixed by Section 2 of this Article III shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which there is a quorum shall be the act
of the Board of Directors, except as may be otherwise specifically provided by
statute or by the certificate of incorporation. If a quorum shall not be present
at any meeting of the Board of Directors, 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.
SECTION 10. Unless otherwise provided by statute, the
certificate of incorporation or these by-laws, the vote of a majority of the
directors at any meeting at which a quorum is present shall be the act of the
Board of Directors. Each director shall have one vote regardless of the number
of shares, if any, which he or she may hold.
SECTION 11. Unless otherwise restricted by the certificate of
incorporation or these 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 or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or committee.
SECTION 12. Unless otherwise restricted by the certificate of
incorporation or these by-laws, members of the Board of Directors, or any
committee designated by the Board of Directors, may participate in a meeting of
the Board of Directors, or any committee thereof, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at the meeting.
COMMITTEES OF DIRECTORS
SECTION 13. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the 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.
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In the absence or disqualification of a member of a committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution
of the Board of Directors, 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; but no such committee shall have the
power or authority in reference to amending the certificate of incorporation,
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
by-laws of the Corporation; and, unless the resolution or the certificate of
incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
SECTION 14. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
SECTION 15. Unless otherwise restricted by the certificate of
incorporation or these by-laws, the Board of Directors shall have the authority
to fix the compensation of directors. The directors may be paid their expenses,
if any, of attendance at each meeting of the Board of Directors. The directors
may be paid a fixed sum for attendance at each meeting of the Board of
Directors, a stated salary as a director or a combination of both. Directors may
be compensated in any form, including by payment of cash or property of any kind
or by the issuance or grant of stock options, restricted stock or any other
equity, equity-linked or debt securities of the Corporation. No such
compensation shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed like compensation for attending committee
meetings.
REMOVAL OF DIRECTORS
SECTION 16. Any director or the entire Board of Directors may
be removed only in accordance with the provisions of the Corporation's
certificate of incorporation.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect a Chief
Executive Officer and a Secretary, each of whom shall hold office until a
successor is elected and qualified or until the earlier resignation or removal
of such officer. The Board of Directors may elect from its
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members a Chairman of the Board and a Vice Chairman of the Board. The Board of
Directors may also elect or appoint a President, one or more Vice Presidents, a
Treasurer, one or more Managing Directors (who shall not be members of the Board
of Directors unless otherwise properly elected thereto) and such other officers
(including Assistant Secretaries and Assistant Treasurers) and agents as it may
deem advisable, who shall hold their offices for such terms and shall exercise
such powers and perform such duties as the Board of Directors shall determine
from time to time. No officer of the Corporation need be a member of the Board
of Directors. Two or more offices may be held by the same person. Any officer
may be removed at any time, with or without cause, by the Board of Directors.
SECTION 2. The Board of Directors may appoint such other
offices and agents as it shall deem necessary or desirable who shall their
offices for such terms and shall exercise such powers and perform such duties as
shall be determined from time to time by the Board.
SECTION 3. The officers of the Corporation shall hold office
until their successors are chosen and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the Board of Directors. An vacancy occurring
in any office of the Corporation shall be filled by the Board of Directors.
THE CHAIRMAN OF THE BOARD
SECTION 4. The Chairman of the Board, if any, shall preside at
all meetings of the Board of Directors and of the stockholders at which such
individual shall be present. Such individual shall have and may exercise such
powers as are, from time to time, assigned to him by the Board and as may be
provided by law.
SECTION 5. In the absence of the Chairman of the Board, the
Vice Chairman of the Board, if any, shall preside at all meetings of the Board
of Directors and of the stockholders at which such individual shall be present.
Such individual shall have and may exercise such powers as are, from time to
time, assigned to him by the Board and as may be provided by law.
SECTION 6. In the absence of the Chairman of the Board and the
Vice Chairman of the Board, if any, the Chief Executive Officer and, in the
absence of the Chief Executive Officer, the President, shall preside at all
meetings of the Board of Directors and of the stockholders. In such capacity,
the Chief Executive Officer or the President shall have and may exercise such
powers as are provided for the Chairman of the Board hereunder or are typically
exercised by a chairman of the board of directors.
CHIEF EXECUTIVE OFFICER
SECTION 7. Subject to the provisions of these by-laws and the
direction of the Board of Directors, such individual shall have the
responsibility for the general management and control of the affairs and
business of the Corporation and shall perform all duties and have all powers
which are commonly incident to the office of Chief Executive Officer or which
from time to time are delegated to him by the Board of Directors. The Chief
Executive Officer shall see that all orders and resolutions of the Board of
Directors are carried into effect.
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SECTION 8. The Chief Executive Officer shall have the power to
sign, in the name of the Corporation, all authorized stock certificates,
contracts, documents, tax returns, instruments, checks and bonds or other
obligations of the Corporation and shall have general supervision and direction
of all of the other officers and agents of the Corporation.
PRESIDENT AND VICE-PRESIDENTS
SECTION 9. The President and each Vice President shall have
such powers and shall perform such duties as shall from time to time be
designated by the Board of Directors.
CHIEF FINANCIAL OFFICER AND TREASURER
SECTION 10. The Chief Financial Officer, if there be one,
and/or the Treasurer, if there be one, shall have the custody of the corporate
funds and securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation. He and/or she shall deposit
all moneys and other valuables in the name and to the credit of the Corporation
in such depositories as may be designated by the Board of Directors.
SECTION 11. The Chief Financial Officer and/or the Treasurer
shall disburse the funds of the Corporation as may be ordered by the Board of
Directors, or the Chief Executive Officer, taking proper vouchers for such
disbursements. He and/or she shall render to the Chief Executive Officer and
Board of Directors at its regular meetings, or whenever they may request it, an
account of all his and/or her transactions as Chief Financial Officer and/or
Treasurer and of the financial condition of the Corporation. If required by the
Board of Directors, he and/or she shall give the Corporation a bond for the
faithful discharge of his duties in such amount and with such surety as the
Board of Directors shall prescribe and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his
possession or under his control belonging to the Corporation.
SECTION 12. If there be no Chief Financial Officer and no
Treasurer, the functions and duties of the Chief Financial Officer and the
Treasurer shall be performed by such other officer or officers of the
Corporation as shall be determined by the Board of Directors, the Chief
Executive Officer or the President.
THE SECRETARY AND ASSISTANT SECRETARY
SECTION 13. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these by-laws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the Chief Executive Officer, directors, or stockholders, upon whose
requisition the meeting is called as provided in the by-laws. The secretary
shall attend all meetings of the Board of Directors and all meetings of the
stockholders and record all the proceedings of the meetings of the Corporation
and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. Such individual
shall perform such other duties as may be prescribed by the Board of Directors
or Chief Executive Officer, under whose supervision such individual shall be.
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SECTION 14. The Secretary shall have the custody of the seal
of the Corporation and he, or an assistant secretary, shall have authority to
affix the same to any instrument requiring it, when authorized by the directors
or the Chief Executive Officer, and attest the same. The Board of Directors may
give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing by his signature.
SECTION 15. The Assistant Secretary, or if there be more than
one, the Assistant Secretaries in the order determined by the Board of Directors
(or if there be no such determination, then in the order of their election)
shall, in the absence of the Secretary or in the event of his inability or
refusal to act, perform the duties and exercise the powers of the Secretary and
shall perform such other duties and have such other powers as the Board of
directors may from time to time prescribe.
MANAGING DIRECTORS
SECTION 16. Each Managing Director, if any, shall have such
powers and shall perform such duties as shall from time to time be designated by
the Board of Directors.
ADDITIONAL POWER OF OFFICERS
SECTION 17. In addition to the powers specifically provided in
these by-laws, each officer (including officers other than those referred to in
these by-laws) shall have such other or additional authority and perform such
duties as the Board of Directors may from time to time determine.
SECTION 18. Unless otherwise directed by the Board of
Directors, the Chief Executive Officer and the President shall have the power to
vote and otherwise act on behalf of the Corporation, in person or by proxy, at
any meeting of stockholders of or with respect to any action of stockholders of
any other corporation in which this Corporation may hold securities and
otherwise to exercise any and all rights and powers which this Corporation may
possess by reason of its ownership of securities in such other corporation.
ARTICLE V
STOCK
CERTIFICATES OF STOCK
SECTION 1. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by the Chief Executive Officer, President
or a Vice President, and by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary, certifying the number of shares owned by
him in the Corporation.
SECTION 2. 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
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qualification, limitations or restrictions or 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 provided in Section 202 of the General
Corporation Law of Delaware, in lieu of the foregoing requirements, there may be
set forth on the face or back of the certificate 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, 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.
SECTION 3. Any of or all the signatures on the certificates
may be facsimiles. 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 individual were such office, transfer agent or registrar at the date
of issue.
LOST, STOLEN OR DESTROYED CERTIFICATES
SECTION 4. A new certificate of stock may be issued in the
place of any certificate theretofore issued by the Corporation, alleged to have
been lost, stolen or destroyed, and the directors may, in their discretion,
require the owner of the lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond, in such sum as they may direct,
to indemnify the Corporation against any claim that may be made against it on
account of the alleged loss, theft, or destruction of any such certificates of
the issuance of any such new certificate.
TRANSFER OF SHARES
SECTION 5. Transfers of stock shall be made only upon the
transfer books of the Corporation kept at an office of the Corporation or by
transfer agents designated to transfer shares of stock of the Corporation. Upon
surrender to the Corporation or its transfer agent or a certificate for shares
duly endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, the Corporation shall issue or cause its transfer agent
to issue a new certificate to the person entitled thereto, cancel the old
certificate and record the transaction upon its books.
STOCKHOLDERS RECORD DATE
SECTION 6. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of stockholders of record entitled to notice of or
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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.
REGISTERED STOCKHOLDERS
SECTION 7. 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 to hold liable for calls and assessments a person
registered on its books as the owner of shares 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 the laws of the State of
Delaware.
ARTICLE VI
MISCELLANEOUS
DIVIDENDS
SECTION 1. Subject to the terms of the certificate of
incorporation, dividends upon the capital stock of the Corporation 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 the capital
stock.
SECTION 2. Subject to the terms of the certificate of
incorporation, 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
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
purposes as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SEAL
SECTION 3. 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. Said seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
FISCAL YEAR
SECTION 4. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
CHECKS
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SECTION 5. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall be determined from time to time by the
Board of Directors.
NOTICE AND WAIVER OF NOTICE
SECTION 6. Except as otherwise provided herein or permitted by
applicable law, notices to directors and stockholders shall be in writing and
delivered personally or mailed to the directors or stockholders at their
addresses appearing on the books of the corporation. Notice to directors may be
given by telecopier, telephone or other means of electronic transmission.
SECTION 7. Stockholders not entitled to vote shall not be
entitled to receive notice of any meetings except as otherwise provided by law.
SECTION 8. Any waiver of notice, given 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 or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in a waiver of notice.
TRANSACTIONS WITH INTERESTED PARTIES
SECTION 9. No contract or transaction between the Corporation
and one or more of the directors or officers, or between the Corporation and any
other corporation, partnership, association, or other organization in which one
or more of the directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because such director or officer is present at or participates in the meeting of
the Board of Directors or a committee of the Board of Directors which authorizes
the contract or transaction or solely because his, her or their votes are
counted for such purpose, if:
(1) The material facts as to his or her relationship
or interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board or committee in good
faith authorizes the contract or transaction by the affirmative vote of a
majority of the disinterested directors, even if the disinterested directors are
less than a quorum;
(2) The material facts as to his or her relationship
or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or ratified, by the Board
of Directors, a committee of the Board of Directors, or the stockholders.
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Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
LAWS AND REGULATIONS
SECTION 10. For purposes of these by-laws, any reference to a
statute, rule or regulation of any governmental body means such statute, rule or
regulation (including any successor thereto) as the same may be amended from
time to time.
CLOSE OF BUSINESS
SECTION 11. Any reference in these by-laws to the close of
business on any day shall be deemed to mean 5:00 P.M. New York time on such day,
whether or not such day is a business day.
FORM OF RECORDS
SECTION 12. 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, punch cards, magnetic tape,
photographs, microphotographs, electronic storage 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.
ARTICLE VII
AMENDMENTS
These by-laws may be repealed, altered, amended or rescinded
by the stockholders of the Corporation by vote of the holders of a majority of
the outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors (considered for this purpose as one
class) cast at a meeting of the stockholders called for that purpose (provided
that notice of such proposed repeal, alteration, amendment or rescission is
included in the notice of such meeting). In addition, in accordance with the
Corporation's certificate of incorporation, the Board of Directors may repeal,
alter, amend or rescind these by-laws by the affirmative vote of a majority of
the members of the Board of Directors.
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ARTICLE VIII
INDEMNIFICATION OF
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
INDEMNIFICATION OF DIRECTORS AND OFFICERS
SECTION 1. The Corporation shall, to the fullest extent
authorized under the laws of the State of Delaware, as those laws may be amended
and supplemented from time to time, and under the certificate of incorporation,
indemnify any director or officer of the Corporation.
INDEMNIFICATION OF EMPLOYEES AND AGENTS
SECTION 2. The Corporation may, by action taken in writing by
its Board of Directors in its sole discretion in a particular case, provide
indemnification to employees and agents of the Corporation, and to persons who
serve at the request of the Corporation as directors, officers, employees or
agents of an affiliate of the Corporation or another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, in each case individually or as a group, to
the same extent (or such lesser extent as the action by the Board of Directors
of the Corporation may provide) as the indemnification of directors and officers
permitted by Section 1 of this Article VIII.
DEFENSE TO INDEMNIFICATION
SECTION 3. It shall be a defense to any action brought by a
person seeking indemnification that, and the Corporation shall have the right to
recover any amounts paid by it to a person on account of indemnification if,
such person has not met the standards of conduct that make it permissible under
the Delaware General Corporation Law for the Corporation to indemnify such
person for the amount sought or paid or such person has failed to abide by his
or her obligations to the Corporation, whether arising by statute, common law,
equity, contract or otherwise.
INSURANCE
SECTION 4. The Corporation may maintain insurance, at its
expense, to protect itself and any person who is or was serving as a director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
INTERESTED DIRECTORS
SECTION 5. No director of the Corporation shall vote on any
action by the Board of Directors of the Corporation to provide indemnification
of such director, or of a definite group of persons that includes such director,
with respect to any particular action, suit or
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proceeding. In the event that, on account of the provisions of this Section 5,
there shall not be a quorum of the Board of Directors, the Corporation may
provide such indemnification only by action of its stockholders.
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