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EXHIBIT 3.3
AMERICAN MANAGEMENT SYSTEMS, INCORPORATED
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BY-LAWS
As amended and restated on June 12, 2000
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ARTICLE I
OFFICES
Section 1. The registered office of the corporation shall be at
1209 Orange Street, in the City of Wilmington, County of New Castle, State of
Delaware. The registered agent of the corporation at such address is The
Corporation Trust Company.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware 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 in the City of Fairfax, Commonwealth of Virginia, 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. The annual meeting of stockholders for the election of
directors and the transaction of other business shall be held, in each year on
the second Friday in May if not a legal holiday, and if a legal holiday, then
on the next secular day following, at 10:00 a.m., or at any other date and
time that shall be designated from time to time by the board of directors and
stated in the notice of 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, either personally or by mail, not less than ten nor more
than sixty days before the date of the meeting. If mailed, such notice shall
be deemed to have been given when deposited in the United States mail, postage
prepaid directed to the stockholder as it appears on the records of the
corporation.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten 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
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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 be called by the chief executive officer and shall be
called by the chief executive officer or secretary at the request in writing
of a majority of the board of directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called, shall be given not less than ten nor more than sixty 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 (or in the case of a class or series
entitled to vote to the exclusion of any other class or series, a majority of
such class or series), present in person or represented by proxy, shall
constitute a quorum at all meetings of such 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 (including any class or series thereof), the
holders of a majority of stock 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 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. At all meetings of the stockholders for the election of
directors a plurality of the votes cast shall be sufficient to elect. All
other elections and questions shall, unless otherwise provided by the
certificate of incorporation, these By-laws, the rules or regulations of any
stock exchange applicable to the corporation, as otherwise provided by law or
pursuant to any regulation applicable to the corporation, be decided by the
affirmative vote of the holders of a majority in voting power of the shares of
stock of the corporation which are present in person or by proxy and entitled
to vote thereon.
Section 10. Except as otherwise provided by or pursuant to the
provisions of the 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 upon the matter
in question. Each stockholder entitled to vote at a meeting of stockholders or
to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for such stockholder by proxy,
but no such proxy shall be voted or acted
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upon after three years from its date, unless the proxy provides for a longer
period. A 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 which is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by delivering a proxy in
accordance with applicable law bearing a later date to the secretary of the
corporation. Voting at meetings of stockholders need not be by written ballot.
Section 11. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to receive payment of any 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 a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the board of directors, and which record
date: (i) in the case of determination of stockholders entitled to vote at any
meeting of stockholders or adjournment thereof, shall, unless otherwise
required by law, not be more than sixty nor less than ten days before the date
of such meeting; and (ii) in the case of any other action, shall not be more
than sixty days prior to such other action. 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 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. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the board of directors may fix a new record date for the adjourned
meeting. Article IIB, Section 1 of these By-laws shall govern the record date
to determine stockholders entitled to express consent to corporate actions in
writing without a meeting.
Section 12. Meetings of stockholders shall be presided over by the
chairman of the board, if any, or in his absence by the vice chairman of the
board, if any, or in his absence by the chief executive officer, or in his
absence by the president, or in his absence by a vice president, or in the
absence of the foregoing persons 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
absence the chairman of the meeting may appoint any person to act as secretary
of the meeting.
Section 13. The corporation shall in advance of any meeting of
stockholders appoint one or more inspectors of election, who may be employees
of the corporation, to act at the meeting and any adjournment thereof and to
make a written report thereof. The corporation may designate one or more
persons as alternate inspectors to replace any inspector who fails to act. In
the event that no inspector so appointed or designated is able to act at a
meeting of stockholders, the person presiding at the meeting shall appoint one
or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his or her duties, shall take and sign an oath to execute
faithfully the duties of inspector with strict impartiality and according to
the best of his or her ability. The inspector or inspectors so appointed or
designated shall (i) ascertain the
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number of shares of capital stock of the corporation outstanding and the
voting power of each such share, (ii) count all votes and ballots, (iii)
determine and retain for a reasonable period a record of the disposition of
any challenges made to any determination by the inspectors, and (iv) certify
their determination of the number of shares of capital stock of the
corporation represented at the meeting and such inspectors' count of all votes
and ballots. Such certification and report shall specify such other
information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of stockholders of the
corporation, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an election may
serve as an inspector at such election.
Section 14. 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 the meeting by the person presiding over the meeting. The
board of directors may adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the
board of directors, the chairman of any meeting of stockholders 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 appropriate for the
proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the board of directors or prescribed by the chairman of the
meeting, may include, without limitation, the following: (i) the establishment
of an agenda or order of business for the meeting; (ii) rules and procedures
for maintaining order at the meeting and the safety of those present; (iii)
limitations on attendance at or participation in the meeting to stockholders
of record of the corporation, their duly authorized and constituted proxies or
such other persons as the chairman of the meeting shall determine; (iv)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (v) limitations on the time allotted to questions or comments by
participants. Unless and to the extent 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.
ARTICLE IIA
NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS
Section 1. (A) 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 By-law, who is entitled to vote at the meeting and
complies with the notice procedures set forth in this By-law.
(B) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (1)(A) of this By-law, 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 sixtieth day nor earlier than the close of
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business on the ninetieth day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of
the annual meeting is more than thirty days before or more than sixty days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the ninetieth day prior to
such annual meeting and not later than the close of business on the later of
the sixtieth day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such meeting is first made by
the corporation. In no event shall the public announcement of an adjournment
of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. Such stockholder's notice shall set
forth (a) as to each person whom the stockholder proposes to nominate for
election or re-election as a director all information relating to such person
that is required to be disclosed in solicitations or proxies for election of
directors in an election contest, 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 (and 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, a brief description of the
business desired to be brought before the meeting, 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
proposal is made, and in the event that such business includes a proposal to
amend the By-laws of the corporation, the language of the proposed amendment;
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 shares 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 proponent
intends or is part of a group which intends to solicit proxies from other
stockholders in support of such proposal or nomination.
(C) Notwithstanding anything in the second sentence of
paragraph (1)(B) of this By-law 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 seventy days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this
By-law 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 offices of the corporation not later than
the close of business on the 10th day following the day on which such public
announcement is first made by the corporation.
Section 2. 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
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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
of giving of notice provided for in this By-law, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
By-law. In the event 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 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 (1)(B) of this
By-law shall be delivered to the secretary at the principal executive offices
of the corporation not earlier than the close of business on the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting, or the 10th day following
the day on which public announcement is first made of the date of the 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
of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
Section 3. (A) Only such persons who are nominated in accordance
with the procedures set forth in this By-law shall be eligible to serve as
director 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 By-law. Except as otherwise provided by law,
the chairman of the meeting shall have the power and duty to (i) 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 By-law and (ii) if any proposed nomination or business is
not in compliance with this By-law, or if the stockholder solicits or is part
of a group which solicits proxies in support of such stockholder's proposal
without such stockholder having made the representation required by clause
(c)(iv) of paragraph 1(B) of this By-law, to declare that such defective
proposal or nomination shall be disregarded.
(B) For purposes of this By-law, "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 or 15(d) of the Exchange Act.
(C) Notwithstanding the foregoing provisions of this
By-law, 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 in this By-law. Nothing in this By-law 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 under
specified circumstances.
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ARTICLE IIB
CONSENTS TO CORPORATE ACTION
RECORD DATE
Section 1. The record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting shall be as
fixed by the board of directors or as otherwise established under this
Section. Any person seeking to have the stockholders authorize or take
corporate action by written consent without a meeting shall, by written notice
addressed to the secretary and delivered to the corporation, request that a
record date be fixed for such purpose. The board of directors may fix a record
date for such purpose which shall be no more than ten days after the date upon
which the resolution fixing the record date is adopted by the board of
directors and shall not precede the date such resolution is adopted. If the
board of directors fails within ten days after the corporation receives such
notice to fix a record date for such purpose, the record date shall be the day
on which the first written consent is delivered to the corporation in the
manner described in Section 2 below unless prior action by the board of
directors is required under the General Corporation Law of the State of
Delaware, in which event the record date shall be at the close of business on
the day on which the board of directors adopts the resolution taking such
prior action.
PROCEDURES
Section 2. (A) Every written consent purporting to take or
authorizing the taking of corporate action and/or related revocations (each
such written consent and related revocation is referred to in this Article IIB
as a "Consent") shall bear the date of signature of each stockholder who signs
the Consent, and no Consent shall be effective to take the corporate action
referred to therein unless, within sixty days of the earliest dated Consent
delivered in the manner required by this Section 2, Consents signed by a
sufficient number of stockholders to take such action are so delivered to the
corporation. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous Consent shall be given to those stockholders
who have not consented in writing, to the extent required by law.
(B) A Consent 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 to the corporation's registered office shall be made by hand or by
certified or registered mail, return receipt requested.
(C) Consents shall be valid for a maximum of sixty days
after the date of the earliest dated Consent delivered to the corporation in
the manner provided in Section 228(c) of the General Corporation Law of the
State of Delaware. Consents may be revoked by written notice (i) to the
corporation, (ii) to the stockholder or stockholders soliciting consents or
soliciting revocation in opposition to action by consent (the "Soliciting
Stockholder"), or (iii) to a proxy solicitor or other agent designated by the
corporation or the Soliciting Stockholders.
(D) Within ten business days after receipt of the
earliest dated Consent delivered to the corporation in the manner provided in
Section 228(c) of the General Corporation Law of the State of Delaware or the
determination by the board of directors of the corporation that the
corporation should seek corporate action by written consent, as the case may
be, the secretary of the corporation shall engage nationally recognized
independent inspectors of elections for the purpose of performing a
ministerial review of the validity of the Consents and
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revocations. The cost of retaining inspectors of election shall be borne by
the corporation. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective
until such date as the independent inspectors certify to the corporation that
the consents delivered to the corporation in accordance with this Section 2
represent at least the minimum number of votes that would be necessary to take
the corporate action. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the board of directors or any stockholder
shall not be entitled to contest the validity of any Consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto,
and the seeking of injunctive relief in such litigation).
(E) Following appointment of the inspectors, Consents
and revocations shall be delivered to the inspectors upon receipt by the
corporation, the Soliciting Stockholder or their proxy solicitors or other
designated agents. As soon as practicable following the earlier of (i) the
receipt by the inspectors, a copy of which shall be delivered to the
corporation, of any written demand by the Soliciting Stockholders of the
corporation, or (ii) sixty days after the date of the earliest dated Consent
delivered to the corporation in the manner provided in Section 228(c) of the
General Corporation Law of the State of Delaware, the inspectors shall issue a
preliminary report to the corporation and the Soliciting Stockholders stating
the number of valid and unrevoked Consents received and whether, based on
preliminary count, the requisite number of valid and unrevoked Consents has
been obtained to authorize or take the action specified in the Consents.
(F) Unless the corporation and the Soliciting
Stockholders shall agree to a shorter or longer period, the corporation and
the Soliciting Stockholders shall have 48 hours to review the Consents and
revocations and to advise the inspectors and the opposing party in writing as
to whether they intend to challenge the preliminary report of the inspectors.
If no written notice of an intention to challenge the preliminary report is
received within 48 hours after the inspectors' issuance of the preliminary
report, the inspectors shall issue to the corporation and the Soliciting
Stockholders their final report containing the information from the
inspectors' determination with respect to whether the requisite number of
valid and unrevoked Consents was obtained to authorize and take the action
specified in the Consents. If the corporation or the Soliciting Stockholders
issue written notice of an intention to challenge the inspectors' preliminary
report within 48 hours after the issuance of that report, a challenge session
shall be scheduled by the inspectors as promptly as practicable. Following
completion of the challenge session, the inspectors shall as promptly as
practicable issue their final report to the Soliciting Stockholders and the
corporation, which report shall contain the information included in the
preliminary report, plus any change in the vote total as a result of the
challenge and a certification of whether the requisite number of valid and
unrevoked Consents was obtained to authorize or take the action specified in
the Consents.
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ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
board shall be not less than five nor more than fifteen. The number of
directors may be altered by resolution adopted by a vote of a majority of the
entire board of directors, or by such vote of the holders of any class or
series of stock as may be specified in the certificate of incorporation. The
directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 3 of this Article or otherwise specified in the
certificate of incorporation and except that the first directors of the
corporation were elected by the incorporators of the corporation, and each
director elected shall hold office until his successor is elected and
qualified. Directors need not be stockholders.
Section 2. Any director may resign at any time upon written notice
to the corporation.
Section 3. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors, except as otherwise
provided in the certificate of incorporation may be filled only by a majority
of the directors then in office, though less than a quorum, or by a sole
remaining director, and the directors so chosen shall hold office until the
next annual election and until their successors are duly elected and shall
qualify, or until their earlier resignation or removal. If there are no
directors in office, then an election of directors may be held in the manner
provided by statute. If, at the time of filling any vacancy or any newly
created directorship, the directors then in office shall constitute less than
a majority of the whole board (as constituted immediately prior to any such
increase), the Court of Chancery may, upon application of any stockholder or
stockholders holding at least ten percent of the total number of the shares at
the time outstanding having the right to vote for such directors, summarily
order an election to be held to fill any such vacancies or newly created
directorships, or to replace the directors chosen by the directors then in
office.
Section 4. 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 or incorporation or by these By-laws directed or
required to be exercised or done by the stockholders.
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. The first meeting of each newly elected board of
directors shall be held immediately after the annual meeting of stockholders
and at the same place, and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided a
quorum shall be present. In the event such meeting is not held at that time
and place, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of
the board of directors, or as shall be specified in a written waiver signed by
all of the directors.
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Section 7. Regular meetings of the board of directors may be held
without notice at such time and at such place as shall from time to time be
determined by the board of directors.
Section 8. Special meetings of the board of directors may be called
by the chairman of the board of directors or the chief executive officer on
three (3) days' notice to each director, either personally or by mail or by
telegram, telecopier, telephone or other means of electronic transmission;
special meetings shall be called by the chief executive officer or secretary
in like manner and on like notice on the written request of a majority of the
directors.
Section 9. At all meetings of the board, a majority of the
directors then in office or, if greater, one-third of the then-authorized
total number of directors, 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 a majority of the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 10. 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.
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COMMITTEES OF DIRECTORS
Section 11. The board of directors may by resolution 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. Any such committee, to
the extent provided in the resolution, shall have and may exercise the powers
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; provided, however, that in the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they 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. 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 12. Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
AUDIT COMMITTEE
Section 13. There shall exist a standing Audit Committee composed of
not fewer than three directors of the corporation who are neither officers nor
employees of the corporation or any of its subsidiaries and who are free from
any relationship which, in the opinion of the board, would interfere with the
exercise of independent judgment in carrying out the responsibilities of a
member of the Audit Committee. The members of the Audit Committee shall be
designated by resolution passed by a majority of the whole board. The board
may designate one or more qualifying directors as alternate members of the
Audit Committee, who may replace any absent or disqualified members at any
meeting of the Committee. In the absence of any member of the Audit Committee,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a majority, may unanimously
appoint another qualifying member of the board to act at the meeting in the
place of any such absent or disqualified member not replaced by an alternate
member designated by the whole board.
Section 14. The Audit Committee shall consist of members possessing
the qualifications set forth in the Audit Committee Charter, as revised from
time to time as provided therein (the "Audit Committee Charter").
Section 15. The Audit Committee shall operate in accordance with the
provisions of the Audit Committee Charter and these Bylaws.
Section 16. The Audit Committee shall keep regular minutes of its
meetings and shall report the same to the board of directors when required.
Section 17. The Audit Committee, to the extent provided in this
By-law, shall have and may exercise the powers of the board of directors in
the management of the business and
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affairs of the corporation and may authorize the seal of the corporation to be
affixed to all papers that may require it.
Section 18. Each individual director of the corporation, as well as
the board as a whole, shall continue to exercise due diligence to assure that
the financial statements of the corporation fairly and accurately present the
results of the operation and financial position of the corporation and that
the corporation's financial operations are conducted in accordance with all
applicable laws and regulations, the corporation's policies and the regular
and accepted principles of accounting. The existence and functioning of the
Audit Committee shall effect no derogation of this duty.
COMPENSATION COMMITTEE
Section 19. There shall exist a standing Compensation Committee
composed of not fewer than three directors of the corporation who are neither
officers nor employees of the corporation. The members of the Compensation
Committee shall be designated by resolution passed by a majority of the whole
board of directors. The board of directors may designate one or more
qualifying directors as alternate members of the Compensation Committee, who
may replace any absent or disqualified members at any meeting of the
committee. In the absence of any member of the Compensation Committee, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a majority, may unanimously
appoint another qualifying member of the board of directors to act at the
meeting in the place of any such absent or disqualified member not replaced by
an alternate member designated by the whole board.
Section 20. The Compensation Committee shall meet at the request of
the board of directors, and on such other occasions as the members of the
committee may deem appropriate and desirable. The chief executive officer
shall attend all meetings of the committee; provided, however, that the chief
executive officer shall not participate in any decision concerning
compensation which is subject to the provisions of Section 16 of the
Securities Exchange Act of 1934 (including decisions regarding eligibility for
participation in plans, awards and any modifications thereto.)
Section 21. The Compensation Committee shall (i) adopt resolutions
recommending compensation policies and practices to the board of directors,
(ii) make decisions regarding compensation plans and compensation for the
chief executive officer and all other executive officers of the corporation,
and make decisions regarding equity based compensation arrangements for and
awards thereof to the controller, and (iii) approve any and all contracts or
other transactions between the corporation and any of its directors or
executive officers (to the extent that the approval of the board of directors
is not required by law.)
Section 22. The Compensation Committee shall keep regular minutes of
its meetings and shall report the same to the board of directors when
required.
Section 23. The Compensation Committee, to the extent provided in
this By-law, shall have and may exercise the powers of the board of directors
in the management of the business
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and affairs of the corporation and may authorize the seal of the corporation
to be affixed to all papers that may require it.
COMPENSATION OF DIRECTORS
Section 24. The directors may be paid their expenses, if any, of
attendance at each meeting of the board of directors and may be paid a fixed
sum for attendance at each meeting of the board of directors or a stated
salary as director. No such payment shall preclude any directors 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.
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
certificate of incorporation or of these By-laws, notice is required to be
given to any director or stockholder, it shall not be construed to mean
personal notice, but such notice may be given in writing, by mail, addressed
to such director or stockholder, at his address as it appears on the records
of the corporation, with postage thereon prepaid, and such notice shall be
deemed to be given at the time when the same shall be deposited in the United
States mail. Notice to directors may also be given in person or by telegram,
telecopier, telephone or other means of electronic transmission.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of these
By-laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be
deemed equivalent thereto. Attendance of a person at a meeting of
stockholders, directors, or members of a committee of directors, shall
constitute a waiver of notice of such meeting, except when the stockholder,
director or committee member attends a meeting for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be
specified in any written waiver of notice unless so required by the
certificate of incorporation or the By-laws.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
board of directors and shall be a chairman of the board, a president, a
secretary and a treasurer. The board of directors may also choose one or more
executive vice-presidents, one or more assistant secretaries and assistant
treasurers, and other officers with such titles and duties as the board of
directors shall designate. The board of directors shall designate one of the
officers of the corporation as the chief executive officer, and such officer
shall continue to act as chief
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executive officer until the board of directors designates another person as
the chief executive officer. The board of directors also shall specify which
officers shall have authority to perform the duties of the chief executive
officer in his absence or in the event of his inability to act and, if there
is more than one such officer, shall specify the order of priority in which
such officers shall act on such authority. The list of such authorized
officers and the specified order of priority shall remain in effect until
changed by the board of directors. Any number of offices may be held by the
same person except where the certificate of incorporation or these By-laws
otherwise provide.
Section 2. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a chairman of the board, a
president, one or more executive vice-presidents, a secretary and a treasurer.
Section 3. The board of directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by or in the manner prescribed by the board of
directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. 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 directors then in office. Any officer may resign at any time
upon written notice to the corporation. Any vacancy occurring in any office of
the corporation shall be filled by or in the manner prescribed by the board of
directors.
THE CHAIRMAN OF THE BOARD
Section 6. The chairman of the board shall preside at all meetings
of the stockholders and the board of directors.
THE CHIEF EXECUTIVE OFFICER
Section 7. The chief executive officer of the corporation shall
have general and active management of the business of the corporation and
shall see that all orders and resolutions of the board of directors are
carried into effect.
Section 8. The chief executive officer shall execute bonds,
mortgages and other contracts requiring a seal, under the seal of the
corporation, except where required, or permitted by law to be otherwise signed
and executed, and except where the signing and execution thereof shall be
expressly delegated by the chief executive officer to some other officer or
agent of the corporation.
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THE PRESIDENT, EXECUTIVE VICE PRESIDENTS
AND OTHER DESIGNATED OFFICERS
Section 9. In the absence of the chief executive officer or in the
event of his inability to act, the officer specified by the board of directors
(and in the event there is more than one such officer, in the order of
priority specified by the board of directors) shall perform the duties of the
chief executive officer, and when so acting, shall have all the powers of and
be subject to all the restrictions upon the chief executive officer. The
president (if he is not the chief executive officer), the executive
vice-president(s), and any other officers designated as officers by the board
of directors shall generally assist the chairman and chief executive officer
and shall perform such other duties and have such other powers as the board of
directors or the chief executive officer may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 10. 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. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors,
and shall perform such other duties as may be prescribed by the board of
directors or the chief executive officer, under whose supervision he shall
act. He shall have custody of the certificate books and such other books and
records as the board of directors may direct. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
assistant secretary. 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 11. 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 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, the chief executive officer or the secretary may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURER
Section 12. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the board of
directors and shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and
shall render to the chief executive officer and the board of directors, at its
regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation and shall perform such other duties and have such other powers as
the board of directors or the chief executive officer may from time to time
prescribe.
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Section 13. The assistant treasurer, or if there shall be more than
one, the assistant treasurers 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 treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as
the board of directors, the chief executive officer or the treasurer may from
time to time prescribe.
ARTICLES VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be
entitled to have a certificate, signed by, or in the name of the corporation
by, the chairman of the board of directors or the president or an executive
vice-president and the treasurer or an assistant treasurer, or the secretary
or an assistant secretary of the corporation, certifying the number of shares
owned by him in the corporation.
Section 2. Where a certificate is countersigned (i) by a transfer
agent other than the corporation or its employee, or, (ii) by a registrar
other than the corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate 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 he were such officer, transfer agent or registrar at the
date of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock to be lost, stolen or destroyed. When authorizing
such issue of a new certificate or certificates, the board of directors may,
in its discretion, and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to give the corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate for shares duly endorsed accompanied by
proper evidence of succession, assignment or authority to transfer, it shall
be the duty of the corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon
its books.
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REGISTERED STOCKHOLDERS
Section 5. The corporation shall be entitled to treat the record
holder of any shares of the corporation as the owner thereof for all purposes,
including all rights deriving from such shares, and shall not be bound to
recognize any equitable or other claim to, or interest in, such shares or
rights deriving from such shares, on the part of any other person, including,
but without limiting the generality thereof, a purchaser, assignee or
transferee of such shares or rights deriving from such shares, unless and
until such purchaser, assignee, transferee or other person becomes the record
holder of such shares, whether or not the corporation shall have either actual
or constructive notice of the interest of such purchaser, assignee, transferee
or other person. Any such purchaser, assignee, transferee or other person
shall not be entitled to receive notice of the meetings of stockholders; to
vote at such meetings; to examine a complete list of the stockholders entitled
to vote at meetings; or to own, enjoy, and exercise any other property or
rights deriving from such shares against the corporation, until such
purchaser, assignee, transferee or other person has become the record holder
of such shares.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, 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,
subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside
out of any funds of the corporation available for dividends such sum or sums
as the board of directors from time to time, in their absolute discretion,
think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the board of directors shall think conducive to the
interest of the corporation, and the board of directors may modify or abolish
any such reserve in the manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other person
or persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation begins on the 1st day
of January and ends on the 31st day of December in each year.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. The corporation shall indemnify and hold harmless, to
the fullest extent permitted by applicable law as it presently exists or may
hereafter be amended, any person (an "Indemnitee") who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
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"proceeding"), by reason of the fact that he, or a person for whom he is the
legal representative, is or was a director or officer of the corporation, or,
while a director or officer of the corporation, is or was serving at the
written request of the corporation as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust, enterprise
or nonprofit entity, including service with respect to employee benefit plans,
against all liability and loss suffered and expenses (including attorneys'
fees) reasonably incurred by such Indemnitee. Notwithstanding the preceding
sentence, except as otherwise provided in Section 3 of this Article, the
corporation shall be required to indemnify an Indemnitee in connection with a
proceeding (or part thereof) commenced by such Indemnitee only if the
commencement of such proceeding (or part thereof) by the Indemnitee was
authorized by the board of directors.
PREPAYMENT OF EXPENSES
Section 2. The corporation shall pay the expenses (including
attorneys' fees) incurred by an Indemnitee in defending any proceeding in
advance of its final disposition, provided, however, that, to the extent
required by law, such payment of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the Indemnitee to repay all
amounts advanced if it should be ultimately determined that the Indemnitee is
not entitled to be indemnified under this Article VIII or otherwise.
CLAIMS
Section 3. If a claim for indemnification or advancement of
expenses under this Article VIII is not paid in full within sixty (60) days
after a written claim therefor by the Indemnitee has been received by the
corporation, the Indemnitee may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the
expense of prosecuting such claim. In any such action the corporation shall
have the burden of proving that the Indemnitee is not entitled to the
requested indemnification or advancement of expenses under applicable law.
NONEXCLUSIVITY OF RIGHTS
Section 4. The rights conferred on any Indemnitee by this Article
VIII shall not be exclusive of any other rights which such Indemnitee may have
or hereafter acquire under any statute, provision of the certificate of
incorporation, these By-laws, agreement, vote of stockholders or disinterested
directors or otherwise.
OTHER SOURCES
Section 5. The corporation's obligation, if any, to indemnify or to
advance expenses to any Indemnitee who was or is serving at this request as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust, enterprise or nonprofit entity shall be reduced by any
amount such Indemnitee may collect as indemnification or advancement of
expenses from such other corporation, partnership, joint venture, trust,
enterprise or non-profit enterprise.
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AMENDMENT OR REPEAL
Section 6. Any repeal or modification of the foregoing provisions
of this Article VIII shall not adversely affect any right or protection
hereunder of any Indemnitee in respect of any act or occurring prior to the
time of such repeal or modification.
OTHER INDEMNIFICATION AND PREPAYMENT OF EXPENSES
Section 7. This Article VIII shall not limit the right of the
corporation, to the extent and in the manner permitted by law, to indemnify
and to advance expenses to persons other than, Indemnitees when and as
authorized by appropriate corporate action.
ARTICLE IX
AMENDMENTS
These By-laws may be altered or repealed at any regular meeting of the
board of directors, or at any special meeting of the board of directors if
notice of such alteration or repeal is contained in the notice of such special
meeting, or by majority vote of the stock outstanding at the annual meeting of
stockholders or at any special meeting of stockholders if notice of such
alteration or repeal is contained in the notice of such special meeting.