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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS OF
THOMAS GROUP, INC.
A Delaware Corporation
As of August 9, 1993
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BYLAWS OF
THOMAS GROUP, INC.
TABLE OF CONTENTS
ARTICLE I OFFICES
Section 1. Registered Office.................................................................... 1
Section 2. Other Offices........................................................................ 1
ARTICLE II MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings.................................................................... 1
Section 2. Annual Meetings...................................................................... 1
Section 3. Special Meetings..................................................................... 1
Section 4. Notice of Meetings and Adjourned Meetings............................................ 2
Section 5. Quorum............................................................................... 2
Section 6. Certain Rules of Procedure Relating to
Stockholder Meetings.............................................................. 3
Section 7. Voting............................................................................... 3
Section 8. Inspectors........................................................................... 4
Section 9. New Business......................................................................... 5
Section 10. Nominations for Director............................................................. 5
Section 11. Requests for Stockholder List and Corporation Records................................ 6
ARTICLE III DIRECTORS
Section 1. Powers............................................................................... 7
Section 2. Number of directors; Term; Qualification............................................. 7
Section 3. Election............................................................................. 7
Section 4. Vacancies............................................................................ 7
Section 5. Place of Meetings.................................................................... 8
Section 6. Regular Meetings..................................................................... 8
Section 7. Special Meetings..................................................................... 8
Section 8. Notice of Meetings................................................................... 8
Section 9. Quorum and Manner of Acting.......................................................... 8
Section 10. Action by consent; Participation by Telephone or Similar Equipment................... 9
Section 11. Resignation; Removal................................................................. 9
Section 12. Compensation of Directors............................................................ 9
ARTICLE IV COMMITTEES OF THE BOARD
Section 1. Designation, Powers and Name........................................................ 10
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Section 2. Meetings; Minutes................................................................... 10
Section 3. Compensation........................................................................ 11
Section 4. Action by Consent; Participation by Telephone or Similar Equipment.................. 11
Section 5. Changes in Committees; Resignations; Removals....................................... 11
ARTICLE V OFFICERS
Section 1. Officers............................................................................ 12
Section 2. Election and Term of Office......................................................... 12
Section 3. Removal and Resignation............................................................. 12
Section 4. Vacancies........................................................................... 12
Section 5. Salaries............................................................................ 13
Section 6. Chairman of the Board............................................................... 13
Section 7. Chief Executive Officer............................................................. 13
Section 8. President and Chief Operating Officer............................................... 13
Section 9. Vice Presidents..................................................................... 14
Section 10. Treasurer........................................................................... 14
Section 11. Assistant Treasurer................................................................. 14
Section 12. Secretary........................................................................... 14
Section 13. Assistant Secretaries............................................................... 15
ARTICLE VI CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. Contracts........................................................................... 15
Section 2. Checks, etc......................................................................... 15
Section 3. Loans............................................................................... 15
Section 4. Deposits............................................................................ 15
ARTICLE VII CAPITAL STOCK
Section 1. Stock Certificates.................................................................. 16
Section 2. List of Stockholders Entitled to Vote............................................... 16
Section 3. Stock Ledger........................................................................ 17
Section 4. Transfers of Capital Stock.......................................................... 17
Section 5. Lost Certificates................................................................... 17
Section 6. Fixing of Record Date............................................................... 18
Section 7. Beneficial Owners
ARTICLE VIII DIVIDENDS
Section 1. Declaration......................................................................... 18
Section 2. Reserve............................................................................. 18
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ARTICLE IX INDEMNIFICATION
Section 1. Indemnification..................................................................... 18
Section 2. Advancement of Expenses............................................................. 19
Section 3. Non-Exclusivity..................................................................... 19
Section 4. Insurance........................................................................... 19
Section 5. Continuity.......................................................................... 20
ARTICLE X SEAL................................................................................ 20
ARTICLE XI WAIVER OF NOTICE.................................................................... 20
ARTICLE XII AMENDMENTS.......................................................................... 20
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BYLAWS
OF
THOMAS GROUP, INC.
A Delaware Corporation
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Thomas
Group, Inc. (hereinafter called the "Corporation") within the State of Delaware
shall be located in the City of Wilmington, County of New Castle.
Section 2. Other Offices. The Corporation may also have an
office or offices and keep the books and records of the Corporation, except as
may otherwise be required by law, in such other place or places, within or
without the State of Delaware, as the Board of Directors of the Corporation
(hereinafter sometimes called the "Board") may from time to time determine or
the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of stockholders of
the Corporation shall be held at the office of the Corporation in the State of
Delaware or at such other place, within or without the State of Delaware, as may
from time to time be fixed by the Board or specified or fixed in the respective
notices or waivers of notice thereof.
Section 2. Annual Meetings. The annual meeting of stockholders
of the Corporation for the election of Directors and for the transaction of such
other business as may properly come before the meeting shall be held annually on
such date and at such time as may be fixed by the Board.
Section 3. Special Meetings. Special meetings of stockholders,
unless otherwise provided by law, may be called at any time only by (i) the
Board pursuant to a resolution adopted by a majority of the then authorized
number of Directors (as determined in accordance with Section 2 of Article III
of these Bylaws), (ii) the Chairman of the Board, or (iii) the President. Any
such call must specify the matter or matters to be acted upon at such meeting
and only such matter or matters shall be acted upon thereat.
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Section 4. Notice of Meetings and Adjourned Meetings. Except as
may otherwise be required by law, notice of each meeting of stockholders, annual
or special, shall be in writing, shall state the purpose or purposes of the
meeting, the place, date and hour of the meeting and, unless it is the annual
meeting, shall indicate that the notice is being issued by or at the direction
of the person or persons calling the meeting, and a copy thereof shall be
delivered or sent by mail, not less than ten (10) or more than sixty (60) days
before the date of said meeting, to each stockholder entitled to vote at such
meeting. If mailed, such notice shall be directed to the stockholder at his
address as it appears on the stock record of the Corporation unless he shall
have filed with the Secretary a written request that notices to him be mailed to
some other address, in which case it shall be directed to him at such other
address. Notice of any adjourned meeting need not be given if the time and place
to which the meeting shall be adjourned were announced at the meeting at which
the adjournment was taken unless (i) the adjournment is for more than thirty
(30) days, (ii) the Board shall fix a new record date for any adjourned meeting
after the adjournment or (iii) these Bylaws otherwise require.
Section 5. Quorum. At each meeting of stockholders of the
Corporation, the holders of a majority of the shares of capital stock of the
Corporation issued and outstanding and entitled to vote shall be present or
represented by proxy to constitute a quorum for the transaction of business,
except as may otherwise be provided by law or the Certificate of Incorporation.
If a quorum is present at a meeting of stockholders, the stockholders
represented in person or by proxy at the meeting may conduct such business as
may be properly brought before the meeting until it is finally adjourned, and
the subsequent withdrawal from the meeting of any stockholder or the refusal of
any stockholder represented in person or by proxy to vote shall not affect the
presence of a quorum at the meeting, except as may otherwise be provided by law
or the Certificate of Incorporation.
If, however, a quorum shall not be present or represented at any
meeting of the stockholders, the chairman of the meeting or holders of majority
of the shares represented in person or by proxy shall have the power to adjourn
the meeting to another time, or to another time and place, without notice
(subject, however, to the requirements of Section 4 of Article II of these
Bylaws) other than announcement of adjournment at the meeting, and there may be
successive adjournments for like cause and in like manner until the requisite
amount of shares entitled to vote at such meeting shall be represented. At such
adjourned meeting at which the requisite amount of shares entitled to vote
thereat
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shall be represented, any business may be transacted that might have
been transacted at the original meeting so adjourned.
Section 6. Certain Rules of Procedure Relating to Stockholder
Meetings. All stockholder meetings, annual or special, shall be governed in
accordance with the following rules:
(i) Only stockholders of record or their proxies will be
permitted to present motions from the floor at any meeting of
stockholders.
(ii) The chairman of the meeting shall preside over and
conduct the meeting in a fair and reasonable manner, and all questions
of procedure or conduct of the meeting shall be decided solely by the
chairman of the meeting. The chairman of the meeting shall have all
power and authority vested in a presiding officer by law or practice to
conduct an orderly meeting. Among other things, the chairman of the
meeting shall have the power to adjourn or recess the meeting, to
silence or expel persons to insure the orderly conduct of the meeting,
to declare motions or persons out of order, to prescribe rules of
conduct and an agenda for the meeting, to impose reasonable time limits
on questions and remarks by any stockholder, to limit the number of
questions a stockholder may ask, to limit the nature of questions and
comments to one subject matter at a time as dictated by any agenda for
the meeting, to limit the number of speakers or persons addressing the
chairman of the meeting or the meeting, to determine when the polls
shall be closed, to limit the attendance at the meeting to stockholders
of record, beneficial owners of stock who present letters from the
record holders confirming their status as beneficial owners, and the
proxies of such record and beneficial holders, and to limit the number
of proxies a stockholder may name.
Section 7. Voting. Except as otherwise provided in the
Certificate of Incorporation, at each meeting of stockholders, every stockholder
of the Corporation shall be entitled to one (1) vote for every share of capital
stock standing in his name on the stock records of the Corporation (i) at the
time fixed pursuant to Section 6 of Article VII of these Bylaws as the record
date for the determination of stockholders entitled to vote at such meeting, or
(ii) if no such record date shall have been fixed, then at the close of business
on the date next preceding the day on which notice thereof shall be given, or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held. At each such meeting, every stockholder shall be
entitled to vote in person, or by proxy
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appointed by an instrument in writing executed by such stockholder or by his
duly authorized agent and bearing a date not more than three (3) years prior to
the meeting in question, unless said instrument provides for a longer period
during which it is to remain in force.
At all meetings of stockholders at which a quorum is present, all
matters (except as otherwise provided in Section 3 of Article III of these
Bylaws and except in cases where a larger vote is required by law, the
Certificate of Incorporation or these Bylaws) shall be decided by a majority of
the votes cast affirmatively or negatively at such meeting by the holders of
shares present or represented by proxy and entitled to vote thereon.
At any meeting of stockholders, every stockholder having the right to
vote may vote either in person or by a proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. Each such proxy shall be
filed with the Secretary of the Corporation before or at the time of the
meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. Each proxy shall be revocable
unless expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
Section 8. Inspectors. The Board of Directors shall, in advance
of any meeting of stockholders, appoint one or more inspectors to act at the
meeting and may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If any inspector appointed or designated by the
Board shall be unwilling or unable to serve, or if the Board shall fail to
appoint inspectors, the chairman of the meeting shall appoint the necessary
inspector or inspectors. The inspectors so appointed, before entering upon the
discharge of their duties, shall be sworn faithfully to execute their duties
with strict impartiality, and according to the best of their ability, and the
oath so taken shall be subscribed by them. Such inspectors shall (i) ascertain
the number of shares outstanding and the voting power of each, (ii) determine
the shares represented at a meeting, the existence of a quorum, and the validity
of proxies and ballots, (iii) count all votes and ballots, (iv) determine and
retain for a reasonable period a record of the disposition of any challenges
made to any determination by such inspectors, (v) certify their determination of
the number of shares represented at the meeting and their count of all votes and
ballots and (vi) perform such further acts as are proper to conduct any election
or vote with fairness to all stockholders. On request of the chairman of the
meeting, the
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inspectors shall make a report in writing of any challenge, question or matter
determined by them and shall execute a certificate of any fact found by them. An
inspector need not be a stockholder of the Corporation, and any officer or
Director of the Corporation may be an inspector on any question other than a
vote for or against his election to any position with the Corporation or on any
other question in which he may be directly interested.
Section 9. New Business. Any new business to be taken up at any
annual meeting of stockholders shall be stated in writing and filed with the
Secretary by the Board of Directors or other person or persons proposing such
new business at least ninety (90) days before the date of the annual meeting,
and all business so stated, proposed and filed shall be considered at the annual
meeting, but no other proposal shall be acted upon at the annual meeting of
stockholders. Any stockholder may make any other proposal at the annual meeting,
and the proposal may be discussed and considered, but unless stated in writing
and filed with the Secretary at least ninety (90) days before the meeting such
proposal shall be postponed for action at the next annual or special meeting of
stockholders or at an adjournment of the meeting with respect to which such
business was proposed. This provision shall not prevent the consideration and
approval or disapproval at the annual meeting of stockholders of reports of
officers, Directors and committees of the Board of Directors, but in connection
with such reports no new business shall be acted upon at such annual meeting
unless stated and filed as herein provided.
Section 10. Nominations for Director. Notwithstanding anything in
these Bylaws to the contrary, only persons who are nominated in accordance with
the procedures hereinafter set forth in this Section 10 shall be eligible for
election as Directors of the Corporation in accordance with Section 3 of Article
III of these Bylaws.
Nominations of persons for election to the Board of Directors of the
Corporation may be made at a meeting of stockholders only (i) by or at the
direction of the Board of Directors or (ii) by any stockholder of the
Corporation entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 10. Such
nominations, other than those made by or at the direction of the Board, shall be
made pursuant to timely notice in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the Corporation not less than
thirty (30) days nor more than sixty (60) days prior to the meeting; provided,
however that in the event that less than forty
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(40) days' notice or prior public disclosure of the date of the meeting is given
or made to stockholders, notice by the stockholder to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the meeting was mailed or such
public disclosure was made. Any adjournment(s) or postponement(s) of the
original meeting whereby the meeting will reconvene within thirty (30) days from
the original date shall be deemed for purposes of notice to be a continuation of
the original meeting and no nominations by a stockholder of persons to be
elected Directors of the Corporation may be made at any such reconvened meeting
other than pursuant to a notice that was timely for the meeting on the date
originally scheduled. Such stockholder's notice shall set forth: (i) as to each
person whom the stockholder proposed to nominate for election or re-election as
a Director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of Directors, or as otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, or any successor regulation thereto (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a Director if elected); and (ii) as to the stockholder giving the
notice (a) the name and address, as they appear on the Corporation's books, of
such stockholder, and (b) the class and number of shares of the Corporation
which are beneficially owned by such stockholder. At the request of the Board of
Directors, any person nominated by the Board for election as a Director shall
furnish to the Secretary of the Corporation that information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by this Section 10, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 11. Requests for Stockholder List and Corporation
Records. Stockholders shall have those rights afforded under the General
Corporation Law of the State of Delaware (the "DGCL") to inspect for any proper
purpose the Corporation's stock ledger, list of stockholders and other books and
records, and make copies or extracts therefrom. Such request shall be in writing
in compliance with Section 220 of the DGCL. Information so requested shall be
made available for inspecting, copying or extracting during usual business hours
at the principal executive offices of the Corporation. Alternative arrangements
with respect to this Section 11 may be permitted in the discretion of the
President of the Corporation or by vote of the Board of Directors.
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ARTICLE III
DIRECTORS
Section 1. Powers. The business of the Corporation shall be
managed by or under the direction of the Board. The Board may exercise all such
authority and powers of the Corporation and do all such lawful acts and things
as are not by law or otherwise directed or required to be exercised or done by
the stockholders.
Section 2. Number of Directors; Term; Qualification. The number
of Directors which shall constitute the whole Board of Directors shall be not
less than one (1), and may be from time to time fixed and determined at a
different number only by resolution of the Board of Directors. No decrease in
the number of Directors constituting the Board shall shorten the term of any
incumbent Director.
Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, each Director shall hold office until the next annual meeting
and until his successor is elected and qualified, or until his earlier death,
resignation, disqualification or removal. Directors need not be residents of the
State of Delaware or stockholders of the Corporation. Each director must have
attained the age of majority.
Section 3. Election. At each meeting of stockholders for the
election of Directors at which a quorum is present, the persons receiving a
plurality of the votes of the shares represented in person or by proxy and
entitled to vote on the election of Directors shall be elected Directors. All
elections of Directors shall be by written ballot, unless otherwise provided in
the Certificate of Incorporation.
Section 4. Vacancies. Unless otherwise provided by law or by the
Certificate of Incorporation, in the case of any increase in the number of
Directors or any vacancy in the Board of Directors, such newly created
directorship or vacancy may be filled by the affirmative vote of the majority of
the remaining Directors then in office, although less than a quorum, or by a
sole remaining Director. Unless the Certificate of Incorporation or these Bylaws
provide otherwise, when one or more Directors shall resign from the Board of
Directors, effective at a future date, the majority of Directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective. Any Director elected or chosen as provided
herein shall serve for the remaining term of the directorship to which appointed
and until
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his successor is elected and qualified or until his earlier death,
resignation or removal.
Section 5. Place of Meetings. Meetings of the Board shall be
held at the Corporation's office in the State of Delaware or at such other
place, within or without such State, as the Board may from time to time
determine or as shall be specified or fixed in the notice or waiver of notice of
any such meeting.
Section 6. Regular Meetings. Regular meetings of the Board shall
be held on such days and at such times as the Board may from time to time
determine. Notice of regular meetings of the Board need not be given except as
otherwise required by law or these Bylaws.
Section 7. Special Meetings. Special meetings of the Board may
be called by the Chairman of the Board or the President and shall be called by
the Secretary at the request of any two of the other Directors.
Section 8. Notice of Meetings. Notice of each special meeting of
the Board (and of each regular meeting for which notice shall be required),
stating the time, place and purposes thereof, shall be mailed to each Director,
addressed to him at his residence or usual place of business, or shall be sent
to him by telex, cable, facsimile or telegram so addressed, or shall be given
personally or by telephone, on twenty-four (24) hours notice, or such shorter
notice as the person or persons calling such meeting may deem necessary or
appropriate in the circumstances. Notice of any such meeting need not be given
to any Director, however, if waived by him before or after the other form of
recorded communication, or if he shall be present at the meeting, except when he
is present for the express purpose of objecting at the beginning of such meeting
to the transaction of any business because the meeting is now lawfully called or
convened.
Section 9. Quorum and Manner of Acting. The presence of at least
a majority of the authorized number of Directors shall be necessary and
sufficient to constitute a quorum for the transaction of business at any meeting
of the Board. If a quorum shall not be present at any meeting of the Board, a
majority of the Directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. Except where a different vote is required by law, the act of a
majority of the Directors present at any meeting at which a quorum shall be
present shall be the act of the Board.
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Section 10. Action by Consent; Participation by Telephone or
Similar Equipment. Any action required or permitted to be taken by the Board may
be taken without a meeting if all the Directors consent in writing to the
adoption of a resolution authorizing the action, unless otherwise restricted by
the Certificate of Incorporation or these Bylaws. The resolution and the written
consents thereto by the Directors shall be filed with the minutes of the
proceedings of the Board. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any one or more Directors may participate in any
meeting of the Board by means of a conference telephone or similar
communications equipment allowing all persons participating in the meeting to
hear each other at the same time. Participation by such means shall constitute
presence in person at a meeting of the Board.
Section 11. Resignation; Removal. Any Director may resign at any
time by giving written notice to the Corporation, provided, however, that
written notice to the Board, the Chairman of the Board, the President or the
Secretary shall be deemed to constitute notice to the Corporation. Such
resignation shall take effect upon receipt of such notice or at any later time
specified therein, and, unless otherwise specified therein, acceptance of such
resignation shall not be necessary to make it effective.
Any Director or the entire Board of Directors may be removed, with or
without cause, by the holders of a majority of the shares then entitled to vote
at an election of Directors; provided, however, that when the holders of any
class or series are entitled by the Certificate of Incorporation to elect one
(1) or more Directors, then, with respect to the removal without cause of a
Director or Directors so elected, the required majority vote shall be of the
holders of the outstanding shares of such class or series and not of the
outstanding shares as a whole.
Section 12. Compensation of Directors. The Board may, unless
otherwise restricted by the Certificate of Incorporation or these Bylaws,
provide for the payment to any of the Directors of a specified amount for
services as a Director and/or member of a committee of the Board, or of a
specified amount for attendance at each regular or special Board meeting or
committee meeting, or of both, and all Directors shall be reimbursed for
expenses of attendance at any such meeting; provided, however, that nothing
herein contained shall be construed to preclude any Director from serving the
Corporation in any other capacity and receiving compensation therefor.
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ARTICLE IV
COMMITTEES OF THE BOARD
Section 1. Designation, Powers and Name. The Board of Directors
may, by resolution passed by a majority of the whole Board, designate one or
more committees, including, if they shall so determine, an Executive Committee,
each such committee to consist of one or more of the directors of the
Corporation.
Except to the extent restricted by law, the Certificate of
Incorporation, or these Bylaws, each committee designated by the Board of
Directors shall have and may exercise such of the powers of the Board in the
management of the business and affairs of the Corporation as may be provided in
such resolution or in these Bylaws; provided, however, that no such committee
shall have the power or authority in reference to amending the Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors pursuant to authority, if any, expressly vested in the
Board by the provisions of the Certificate of Incorporation, (i) fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes or any other series of the same or any other class
or classes of stock of the Corporation, or (ii) fix the number of shares of any
series of stock or authorize the increase or decrease of the shares of any
series), adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending the
Bylaws of the Corporation; and, provided further, that, unless the resolution
establishing the committee, the Certificate of Incorporation or these Bylaws
expressly so provide, no such committee shall have the power or authority to
declare a dividend, to authorize the issuance of stock or to adopt a certificate
of ownership and merger pursuant to Section 253 of the DGCL. The committee may
authorize the seal of the Corporation to be affixed to all papers which may
require it. The Board of Directors may designate one or more Directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting.
Section 2. Meetings; Minutes. Unless the Board of Directors
shall otherwise provide, upon designation of any committee by the Board, such
committee shall elect one of its members as chairman and may elect one of its
members as vice
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chairman and shall adopt rules of proceeding providing for, among other things,
the manner of calling committee meetings, giving notices thereof, quorum
requirements for such meetings, and the methods of conducting the same. Each
committee of Directors shall keep regular minutes of its proceedings and report
the same to the Board of Directors when required.
Section 3. Compensation. Members of special or standing
committees may be allowed compensation if the Board of Directors shall so
determine pursuant to Section 12 of Article III of these Bylaws.
Section 4. Action by Consent; Participation by Telephone or
Similar Equipment. Unless the Board of Directors, the Certificate of
Incorporation or these Bylaws shall otherwise provide, any action required or
permitted to be taken by any committee may be taken without a meeting if all
members of the committee consent in writing to the adoption of a resolution
authorizing the action. The resolution and the written consents thereto by the
members of the committee shall be filed with the minutes of the proceedings of
the committee. Unless the Board of Directors, the Certificate of Incorporation,
or these Bylaws shall otherwise provide, any other or more members of any such
committee may participate in any meeting of the committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation by such means
shall constitute presence in person at a meeting of the committee.
Section 5. Changes in Committees; Resignations; Removals. The
Board shall have power, by the affirmative vote of a majority of the authorized
number of Directors, at any time to change the members of, to fill vacancies in,
and to discharge any committee of the Board. Any member of any such committee
may resign at any time by giving notice to the Corporation, provided, however,
that notice to the Board, the Chairman of the Board, the President, the chairman
of such committee or the Secretary shall be deemed to constitute notice to the
Corporation. Such resignation shall take effect upon receipt of such notice or
at any later time specified therein; and, unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it effective. Any
member of any such committee may be removed at any time, with or without cause,
by the affirmative vote of a majority of the authorized number of Directors at
any meeting of the Board called for that purpose.
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ARTICLE V
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
Chairman of the Board, a Chief Executive Officer, a President, a Chief Operating
Officer, one or more Vice Presidents (any one or more of whom may be designated
Executive Vice President or Senior Vice President), a Secretary and a Treasurer.
The Board of Directors may appoint such other officers and agents, including
Assistant Vice Presidents, Assistant Secretaries and Assistant Treasurers, as it
shall deem necessary, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined by the
Board. Any two or more offices may be held by the same person. The Chairman of
the Board shall be elected from among the Directors. With the foregoing
exception, none of the other officers need be a Director, and none of the
officers need be a stockholder of the Corporation unless otherwise required by
the Certificate of Incorporation.
Section 2. Election and Term of Office. The officers of the
Corporation shall be elected annually by the Board of Directors at its first
regular meeting held after the annual meeting of stockholders or as soon
thereafter as conveniently practicable. Each officer shall hold office until his
successor shall have been elected or appointed and shall have been qualified or
until his death or the effective date of his resignation or removal, or until he
shall cease to be a Director in the case of the Chairman of the Board.
Section 3. Removal and Resignation. Any officer or agent elected
or appointed by the Board of Directors may be removed, with or without cause, by
the affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the Corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Election or appointment of an officer or agent shall not
of itself create contract rights other than indemnification rights with respect
to officers. Any officer may resign at any time by giving written notice to the
Corporation. Any such resignation shall take effect at the date of the receipt
of such notice or at any later time specified therein, and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 4. Vacancies. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled by the
Board of Directors and, in the case of any vacancy in an office other than the
office of Chairman of the Board (if any) or President, by the President for the
unexpired portion of the term.
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Section 5. Salaries. The salaries of all officers and agents of
the Corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a Director.
Section 6. Chairman of the Board. The Chairman of the Board (who
may also hold the office of Chief Executive Officer or other offices) shall have
such duties as the Board of Directors may prescribe. The Chairman of the Board
shall preside at all meetings of the stockholders and of the Board of Directors.
The Chairman of the Board may sign all certificates for shares of stock of the
Corporation. In the Chairman's absence, such duties shall be attended to by the
President or any Vice President.
Section 7. Chief Executive Officer. Unless and to the extent
that such powers and duties are expressly delegated to the Chairman of the Board
or the President by the Board of Directors, the Chief Executive Officer shall be
the Chief Executive Officer of the Corporation and, subject to the supervision
of the Board of Directors, shall, together with the President, have general
management and control of the business and property of the Corporation in the
ordinary course of its business with all such powers with respect to such
general management and control as may be reasonably incident to such
responsibilities, including, but not limited to, the power to employ, discharge,
or suspend employees and agents of the Corporation, and to fix the compensation
of employees and agents. The Chief Executive Officer may, without limitation,
agree upon and execute all division and transfer orders, bonds, contracts, and
other obligations in the name of the Corporation.
Section 8. President and Chief Operating Officer. Unless and to
the extent that such powers and duties are expressly delegated to the Chairman
of the Board or the Chief Executive Officer by the Board of Directors, the
President and Chief Operating Officer shall be an executive officer of the
Corporation and, subject to the supervision of the Board of Directors, shall,
together with the Chairman of the Board and the Chief Executive Officer have
general management and control of the business and property of the Corporation
in the ordinary course of its business with all such powers with respect to such
general management and control as may be reasonably incident to such
responsibilities, including, but not limited to, the power to employ, discharge,
or suspend employees and agents of the Corporation, and to fix the compensation
of employees and agents. The President and Chief Operating Officer may, without
limitation, agree upon and execute all division and transfer orders, bonds,
contracts, and other obligations in the name of the Corporation.
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Section 9. Vice Presidents. Each Vice President shall have such
powers and duties as may be assigned to him by the Board of Directors, the
Chairman of the Board, or the President and (in order of their seniority as
determined by the Board of Directors or, in the absence of such determination,
as determined by the length of time they have held the office of Vice President)
shall exercise the powers of the President during that officer's absence or
inability to act. As between the Corporation and third parties, any action taken
by a Vice President in the performance of the duties of the President shall be
conclusive evidence of the absence or inability to act of the President at the
time such action was taken.
Section 10. Treasurer. The Treasurer shall have custody of the
Corporation's funds and securities, shall keep full and accurate account of
receipts and disbursements, shall deposit all monies and valuable effects in the
name and to the credit of the Corporation in such depository or depositories as
may be designated by the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors, the Chairman of the Board, or
the President.
Section 11. Assistant Treasurer. Each Assistant Treasurer shall
have such powers and duties as may be assigned to him by the Board of Directors,
the Chairman of the Board, or the President. The Assistant Treasurers (in the
order of their seniority as determined by the Board of Directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Treasurer) shall exercise the powers of the
Treasurer during that officer's absence or inability to act.
Section 12. Secretary. Except as otherwise provided in these
Bylaws, the Secretary shall keep the minutes of all meetings of the Board of
Directors and of the stockholders in books provided for that purpose, and he
shall attend to the giving and service of all notices. He may sign with the
Chairman of the Board or the President, in the name of the Corporation, all
contracts of the Corporation and affix the seal of the Corporation thereto. He
may sign with the Chairman of the Board or the President all certificates for
shares of stock of the Corporation, and he shall have charge of the certificate
books, transfer books, and stock papers as the Board of Directors may direct,
all of which shall at all reasonable times be open to inspection by any director
upon application at the office of the Corporation during business hours. He
shall in general perform all duties incident to the office of the Secretary,
subject to the control of the Board of Directors, the Chairman of the Board, and
the President.
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Section 13. Assistant Secretaries. Each Assistant Secretary shall
have such powers and duties as may be assigned to him by the Board of Directors,
the Chairman of the Board, or the President. The Assistant Secretaries (in the
order of their seniority as determined by the Board of Directors or, in the
absence of such a determination, as determined by the length of time they have
held the office of Assistant Secretary) shall exercise the powers of the
Secretary during that officer's absence or inability to act.
ARTICLE VI
CONTRACTS, CHECKS, LOANS, DEPOSITS, ETC.
Section 1. Contracts. The Board may authorize any officer or
officers, agent or agents, in the name and on behalf of the Corporation, to
enter into any contract or to execute and deliver any instrument, which
authorization may be general or confined to specific instances; and, unless so
authorized by the Board, no agent or employee who is not an officer shall have
any power or authority to bind the Corporation by any contract or engagement or
to pledge its credit or to render it liable pecuniarily for any purpose or for
any amount.
Section 2. Checks, etc. All checks, drafts, bills of exchange or
other orders for the payment of money out of the funds of the Corporation, and
all notes or other evidences of indebtedness of the Corporation, shall be signed
in the name and on behalf of the Corporation in such manner as shall from time
to time be authorized by the Board, which authorization may be general or
confined to specific instances.
Section 3. Loans. No loan shall be contracted on behalf of the
Corporation, and no negotiable paper shall be issued in its name, unless
authorized by the Board, which authorization may be general or confined to
specific instances. All bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation issued for such loans shall be
made, executed and delivered as the Board shall authorize.
Section 4. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositaries as may be selected by or in
the manner designated by the Board. The Board or its designees may make such
special rules and regulations with respect to such bank accounts, not
inconsistent with the provisions of these Bylaws, as may be deemed expedient.
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ARTICLE VII
CAPITAL STOCK
Section 1. Stock Certificates. Each stockholder of the
Corporation shall be entitled to have, in such form as shall be approved by the
Board, a certificate or certificates signed by the Chairman of the Board or the
President and by either the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary (except that, when any such certificate is
countersigned by a transfer agent or registered by a registrar other than the
Corporation itself or any employee, the signatures of any such officers may be
facsimiles, engraved or printed), which may be sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed), certifying the
number of shares of capital stock of the Corporation owned by such stockholder.
In case any officer who has signed or whose facsimile signature has been placed
upon any such certificate shall have ceased to be such officer before such
certificate is issued, such certificate may be issued by the Corporation with
the same effect as if he were such officer at the date of its issue.
If the Corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations,
preferences and relative, participating, optional, or other special rights of
each class of stock or series thereof, and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock; provided that, except as
otherwise stated in Section 202 of the DGCL, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, option or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
Section 2. List of Stockholders Entitled to Vote. The officer of
the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make or cause to have prepared or made, at least ten (10) days
before every meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be
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open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The list shall also
be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
Section 3. Stock Ledger. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 2 of this Article VII or the
books and records of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
Section 4. Transfers of Capital Stock. Transfers of shares of
capital stock of the Corporation shall be made only on the stock record of the
Corporation by the holder of record thereof or by his attorney thereunto
authorized by power of attorney duly executed and filed with the Secretary of
the Corporation or the transfer agent thereof, and only on surrender of the
certificate or certificates representing such shares, properly endorsed or
accompanied by a duly executed stock transfer power. The Board may make such
additional rules and regulations as it may deem expedient concerning the issue
and transfer of certificates representing shares or uncertificated shares of the
capital stock of the Corporation.
Section 5. Lost Certificates. The Board of Directors may direct
a new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed or the issuance of such new certificate.
Section 6. Fixing of Record Date. In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting
of stockholders or any adjournment thereof, or entitled to receive payment of
any dividends or other distribution or allotment of any rights, or entitled to
exercise
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any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board may fix, in advance, a record
date, which record date shall (i) not precede the date upon which the resolution
fixing the record date is adopted by the Board and (ii) not be more than sixty
days nor less than ten days before the date of such meeting, nor more than sixty
days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
Section 7. Beneficial Owners. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner, and shall not be
bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or
other notice thereof, except as otherwise provided by law.
ARTICLE VIII
DIVIDENDS
Section 1. Declaration. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Reserve. Before payment of any dividend, there may be
set aside out of any funds of the Corporation available for dividends such sum
or sums as the Board of Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies or for
equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the Board of Directors shall think
conducive to the interests of the Corporation, and the Directors may modify or
abolish any such reserve in the manner in which it was created.
ARTICLE IX
INDEMNIFICATION
Section 1. Indemnification. The Corporation shall indemnify to
the full extent authorized or permitted by Section 145 of the DGCL any person
(his heirs, executors and administrators) made, or threatened to be made, a
party to any
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action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a Director or officer of
the Corporation or by reason of the fact that as such Director or officer at the
request of the Corporation, is or was serving any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity. The Corporation may indemnify to the full extent authorized or
permitted by Section 145 of the DGCL any person (his heirs, executors and
administrators) made, or threatened to be made, a party to any action, suit or
proceeding (whether civil, criminal, administrative or investigative) by reason
of the fact that he is or was an employee or agent of the Corporation or by
reason of the fact that as such employee or agent, at the request of the
Corporation, is or was serving any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, in any capacity.
Nothing contained herein shall affect any rights to indemnification to which
Directors, officers, employees and agents of the Corporation may be entitled by
law.
Section 2. Advancement of Expenses. Expenses (including
attorneys' fees) incurred by an officer or Director of the Corporation in
defending any civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors upon
receipt of an undertaking by or on behalf of such Director or officer to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation as authorized in this Article IX. Such expenses
incurred by employees and agents of the Corporation other than Directors and
officers may be paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
Section 3. Non-Exclusivity. The indemnification and advancement
of expenses provided for hereby shall not be deemed exclusive of any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under any bylaw, agreement, vote of stockholders or disinterested
Directors, or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Section 4. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise
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against any liability asserted against him and incurred by him in any such
capacity, arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this Article IX.
Section 5. Continuity. The indemnification and advancement of
expenses provided for in this Article IX shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Director,
officer, employee or agent of the Corporation and shall inure to the benefit of
the heirs, executors and administrators of such a person.
ARTICLE X
SEAL
The seal of the Corporation shall be such as from time to time may be
approved by the Board of Directors.
ARTICLE XI
WAIVER OF NOTICE
Whenever any notice is required by law, the Certificate of
Incorporation or these Bylaws to be given to any Director, member of a committee
or stockholder, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the stockholders, Directors, or members of a
committee of Directors need be specified in any written waiver of notice unless
so required by the Certificate of Incorporation or these Bylaws.
ARTICLE XII
AMENDMENTS
Subject to the Certificate of Incorporation and applicable law, these
Bylaws or any of them may be amended or supplemented in any respect at any time,
either (a) at any meeting of stockholders, provided that any amendment or
supplement proposed to be acted upon at any such meeting shall have been
described or referred to in the notice of such meeting, or (b) at any meeting of
the Board, provided that any amendment or supplement proposed to be acted upon
at any such meeting shall have been described or referred to in the notice of
such meeting or an announcement with respect thereto shall have been made at the
last previous Board meeting, and provided further
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that no amendment or supplement adopted by the Board shall vary or conflict with
any amendment or supplement adopted by the stockholders.
I, the undersigned, being the Secretary of the Corporation DO HEREBY
CERTIFY THAT the foregoing are the Bylaws of said Corporation, as adopted by the
Board of Directors of said Corporation as of August 9, 1993.
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Alex W. Young
Secretary
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