EXHIBIT 3.1
AMENDED AND RESTATED
BYLAWS
OF
ENHERENT CORP.
A DELAWARE CORPORATION
EFFECTIVE AS OF OCTOBER 28, 2004
AMENDED AND RESTATED
BYLAWS
OF
ENHERENT CORP.
(the "CORPORATION")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. 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.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at any place,
within or without the State of Delaware, as designated from time to time by the
Board of Directors. The Board may, in its sole discretion, determine that a
meeting of stockholders shall not be held at any place, but may instead be held
solely by means of remote communication as authorized by Section 211(a)(2) of
the Delaware General Corporation Law (the "DGCL").
Section 2. Annual Meetings. The annual meetings of stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect directors, and transact such other
business as may properly be brought before the meeting. Written notice of the
annual meeting stating the place, date and hour of the meeting, and, if
applicable, the means of remote communications by which stockholders and
proxyholders shall be deemed to be present in person or vote at such meeting,
shall be given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the meeting.
Section 3. Special Meetings. Unless otherwise prescribed by law or by the
certificate of incorporation of the Corporation, as amended and restated from
time to time (the "CERTIFICATE OF INCORPORATION"), special meetings of
stockholders, for any purpose or purposes, may be called by either the President
or the Board of Directors. Such request shall state the purpose or purposes of
the proposed
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meeting. At a special meeting of the stockholders, only such business shall be
conducted as shall be specified in the notice of meeting (or any supplement)
given by or at the direction of the Board of Directors. Written notice of a
special meeting stating the place, date and hour of the meeting, the purpose or
purposes for which the meeting is called, and if applicable, the means of remote
communications by which stockholders and proxyholders shall be deemed to be
present in person or vote at such meeting, shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise required by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business. A quorum, once established, shall not be broken by the
withdrawal of enough votes to leave less than a quorum. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote, 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 noticed. If the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder entitled to
vote at the meeting not less than ten (10) nor more than sixty (60) days before
the date of the meeting.
Section 5. Proxies. Any stockholder entitled to vote may do so in person
or by his or her proxy appointed by an instrument in writing subscribed by such
stockholder or by his or her authorized attorney, delivered to the Secretary of
the meeting; provided, however, that no proxy shall be voted or acted upon after
three years from its date, unless said proxy provides for a longer period.
Without limiting the manner in which a stockholder may authorize another person
or persons to act for him or her as proxy, either of the following shall
constitute a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person
or persons to act for him or her as proxy. Execution may be accomplished by the
stockholder or his or her authorized officer, director, employee or agent
signing such writing or causing his or her signature to be affixed to such
writing by any reasonable means, including, but not limited to, by facsimile
signature.
(ii) A stockholder may authorize another person or persons to act
for him or her as proxy by transmitting or authorizing the transmission of a
telegram or other means of electronic transmission to the person who will be the
holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder
of the proxy to receive
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such transmission, provided that any such telegram or other means of electronic
transmission must either set forth or be submitted with information from which
it can be determined that the telegram or other electronic transmission was
authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission authorizing another person or persons to act as
proxy for a stockholder may be substituted or used in lieu of the original
writing or transmission for any and all purposes for which the original writing
or transmission could be used; provided, however, that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
Section 6. Voting. At all meetings of the stockholders at which a quorum
is present, except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, any question brought before any meeting of
stockholders shall be decided by the affirmative vote of the holders of a
majority of the total number of votes of the capital stock present in person or
represented by proxy and entitled to vote on such question, voting as a single
class. The Board of Directors, in its discretion, or the officer of the
Corporation presiding at a meeting of stockholders, in his or her discretion may
require that any votes cast at such meeting shall be cast by written ballot.
Section 7. Nature of Business at Meetings of Stockholders. No business may
be transacted at an annual meeting of stockholders, other than business that is
either (a) specified in the notice of meeting (or any supplement) given by or at
the direction of the Board of Directors (or any duly authorized committee), (b)
otherwise, properly brought before the annual meeting by or at the direction of
the Board of Directors (or any duly authorized committee) or (c) otherwise
properly brought before the annual meeting by any stockholder of the Corporation
(i) who is a stockholder of record on the date of the giving of the notice
provided for in this Section 7 and on the record date for the determination of
stockholders entitled to vote at such annual meeting and (ii) who complies with
the notice procedures set forth in this Section 7.
In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a stockholder, such stockholder
must have given timely notice in proper written form to the Secretary of the
Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to 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
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of the annual meeting was mailed or such public disclosure of the date of
the annual meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of such stockholder, (iii) the class
or series and number of shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear in
person or by proxy at the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual meeting of stockholders
except business brought before the annual meeting in accordance with the
procedures set forth in this Section 7, provided, however, that, once business
has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 7 shall be deemed to preclude discussion by
any stockholder of any such business. If the Chairman of an annual meeting
determines that business was not properly brought before the annual meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
Section 8. 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, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten (10) days prior to
the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting for the duration of the
meeting, and may be inspected by any stockholder of the Corporation who is
present.
Section 9. 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 8 of this Article II or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
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Section 10. 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, 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: (1) in
the case of determination of stockholders entitled to vote at any meeting of
stockholders or adjournment, shall not be less than ten (10) nor more than sixty
(60) days before the date of such meeting; and (2) in the case of any other
action, shall not be more than sixty (60) days prior to such other action. If no
record date is fixed: (1) 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 (2) 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. 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 11. Inspectors of Election. In advance of any meeting of
stockholders, the Board of Directors by resolution or the President shall
appoint one or more inspectors of election to act at the meeting and make a
written report thereof. One or more other persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is present, ready and willing to act at a meeting of stockholders, the
Chairman of the meeting shall appoint one or more inspectors to act at the
meeting. Unless otherwise required by law, inspectors may be officers, employees
or agents of the Corporation. Each inspector, before entering upon the discharge
of his or her duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of his or
her ability. The inspector shall have the duties prescribed by law and shall
take charge of the polls and, when the vote is completed, shall make a
certificate of the result of the vote taken and of such other facts as may be
required by law.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors. The Board of Directors shall
consist of not less than five (5) nor more than eleven (11) members, the exact
number of which shall be determined from time to time by resolution adopted by
the Board of Directors. Except as provided in Section 3 of this Article III,
directors shall be elected by the stockholders at the annual meetings of
stockholders, and each director
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so elected shall hold office until such director's successor is duly elected and
qualified, or until such director's death, or until such director's earlier
resignation or removal. Directors need not be stockholders.
Section 2. Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the Corporation, except as may be otherwise provided in the
Certificate of Incorporation with respect to the right of holders of preferred
stock of the Corporation to nominate and elect a specified number of directors
in certain circumstances. Nominations of persons for election to the Board of
Directors may be made at any annual meeting of stockholders, or at any special
meeting of stockholders called for the purpose of electing directors, (a) by or
at the direction of the Board of Directors (or any duly authorized committee) or
(b) by any stockholder of the Corporation (i) who is a stockholder of record on
the date of the giving of the notice provided for in this Section 2 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 2.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice in proper
written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation (a)
in the case of an annual meeting, not less than sixty (60) days nor more than
ninety (90) days prior to the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within thirty (30), days before
or after such anniversary date, notice by the stockholder in order to be timely
must be 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 annual meeting was
mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs; and (b) in the case of a special meeting of stockholders
called for the purpose of electing directors, not later than the close of
business on the tenth (10th) day following the day on which notice of the date
of the special meeting was mailed or public disclosure of the date of the
special meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by the person and (iv) any other
information relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and the rules
and regulations promulgated thereunder; and
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(b) as to the stockholder giving the notice (i) the name and record address of
such stockholder, (ii) the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of record by such
stockholder, (iii) a description of all arrangements or understandings between
such stockholder and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stockholder intends to appear
in person or by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and its rules and regulations. Such
notice must be accompanied by a written consent of each proposed nominee to
being named as a nominee and to serve as a director if elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section 2.
If the Board determines that a nomination was not made in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be disregarded.
Section 3. Vacancies. Subject to the terms of any one or more classes or
series of preferred stock, any vacancy on the Board of Directors that results
from an increase in the number of directors may be filled by a majority of the
directors then in office, provided that a quorum is present, and any other
vacancy occurring on the Board of Directors may be filled by a majority of the
Board of Directors then in office, even if less than a quorum, or by a sole
remaining director. Notwithstanding the foregoing, whenever the holders of any
one or more class or classes or series of preferred stock of the Corporation
shall have the right, voting separately as a class, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
Certificate of Incorporation.
Section 4. Duties and Powers. Subject to the provisions of the DGCL and
any limitations in the Certificate of Incorporation or these Bylaws relating to
action required to be approved by the stockholders or by the outstanding shares,
the business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the Board of Directors.
Section 5. Resignations and Removals of Directors. Any director of the
Corporation may resign at any time, by giving written notice to the Chairman of
the Board of Directors, the President or the Secretary of the Corporation. Such
resignation shall take effect at the time therein specified or, if no time is
specified, immediately; and, unless otherwise specified in such notice, the
acceptance of such resignation shall not be necessary to make it effective.
Except as otherwise required by law and subject to the rights, if any, of the
holders of shares of preferred stock then outstanding, any director or the
entire Board of
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Directors may be removed from office at any time, but only for cause, and only
by a majority of the entire Board of Directors or by the affirmative vote of the
holders of at least a majority in voting power of the issued and outstanding
capital stock of the Corporation entitled to vote in the election of directors.
Section 6. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held at such time
and at such place as may from time to time be determined by the Board of
Directors and, unless required by resolution of the Board of Directors, without
notice. Special meetings of the Board of Directors may be called by the
President or a majority of the directors then in office. Notice stating the
place, date and hour of the meeting shall be given to each director either by
mail not less than forty-eight (48) hours before the date of the meeting, by
telephone, facsimile or telegram on twenty-four (24) hours' notice, or on such
shorter notice as the person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
At each meeting of the Board of Directors, the Secretary of the
Corporation shall act as Secretary and shall keep minutes of the meeting, to be
filed in the corporate books. In case the Secretary shall be absent from any
meeting of the Board of Directors, an Assistant Secretary shall perform the
duties of Secretary at such meeting; and in the absence from any such meeting of
the Secretary and all the Assistant Secretaries, the Chairman of the meeting may
appoint any person to act as Secretary of the meeting.
Section 7. Quorum. Except as may be otherwise required by the DGCL, the
Certificate of Incorporation or these Bylaws, at all meetings of the. Board of
Directors, a majority of the entire Board 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. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present may adjourn the meeting from time to time,
without notice other than announcement that the meeting of the time and place of
the adjourned meeting, until a quorum shall be present.
Section 8. Actions of Board. Unless otherwise provided by the Certificate
of Incorporation or these Bylaws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any board committee may be taken
without a meeting, if all the members of the Board of Directors or committee, as
the case may be, consent in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board of Directors or committee.
Section 9. Meetings by Means of Conference Telephone. Unless otherwise
provided by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors of the
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Corporation, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of
a conference telephone or similar communications equipment by means of which all
persons participating, in the meeting can hear each other, and participation in
a meeting pursuant to this Section 9 shall constitute presence in person at such
meeting.
Section 10. Chairman of the Board. The Board of Directors shall elect at
each annual meeting a Chairman of the Board of Directors, who shall be a
director and who shall hold office until the next annual meeting of the Board of
Directors and until his successor is elected and qualified or until his earlier
resignation or removal by act of the Board of Directors. The duties of the
Chairman of the Board shall be to preside at meetings of the stockholders and of
the Board of Directors. In the absence of the Chairman of the Board, the
President or Vice President shall preside at meetings of the stockholders and
the Board of Directors.
Section 11. Compensation. 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, or such other emoluments as the Board of Directors shall from time to
time determine. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefore. Members
of committees may be allowed like compensation for attending committee meetings.
Section 12. Interested Directors. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a Board committee which
authorizes the contract or transaction, or solely because such person's or their
votes are counted for such purpose if (i) the material facts as to such person's
or their relationship or interest and as to the contract or transaction are
disclosed or are known to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or (ii) the material
facts as to such person's or their relationship or interest and as to the
Contract or transaction are disclosed or are known to the stockholders entitled
to vote, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified, by the
Board of Directors, a Board committee or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of
the Board of Directors or of a committee which authorizes the contract or
transaction.
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ARTICLE IV
COMMITTEES
Section 1. Committees of the Board of Directors. The Board of Directors
shall designate an audit committee, whose purpose shall be to assist the Board
of Directors in monitoring: (a) the integrity of the Corporation's financial
statements; (b) compliance with legal and regulatory requirements and corporate
policies and controls; and (c) the selection, retention, qualifications and
independence of an independent auditor, to the extent that one may be required.
The audit committee shall be comprised of directors who are not officers of the
Corporation, and to the extent practicable and/or required by law, such
directors shall be independent.
The Board of Directors shall further designate a nominating committee,
whose purpose shall be to (a) assist the Board of Directors by identifying
individuals qualified to become board members and to recommend to the Board of
Directors the director nominees at the annual meeting of stockholders; (b)
evaluate management's recommendations on the election of officers; and (c)
recommend to the Board of Directors nominees for each committee of the Board of
Directors.
The Board of Directors shall further designate a compensation committee,
whose purpose shall be to discharge the Board's responsibilities relating to
compensation of the Corporation's directors and officers, and who shall have
overall responsibility for approving and evaluating the director and officer
compensation plans, policies and programs of the Corporation, as well as
producing an annual report on executive compensation for inclusion in the
Corporation's proxy statement and other filings. The compensation committee
shall be comprised of directors who are not officers of the Corporation.
The Board of Directors may from time to time designate other additional
committees of the board, with such lawfully delegable powers and duties as it
thereby confers, to serve at the pleasure of the board and shall, for those
committees and any others provided for, elect a director or directors to serve
as the member or members, designating, if it desires, other directors as
alternate members who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of any member of
any committee and any alternate member in his place, the member or members of
the committee present at the meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may by unanimous vote appoint another
member of the Board of Directors to act at the meeting in the place of the
absent or disqualified member. The Board of Directors may, from time to time,
suspend, alter, continue or terminate any committee or the powers and functions
of such committee.
Section 2. Officers' Committees. Subject to the approval of the Board, the
President or the Board may appoint, or may provide for the appointment of,
committees consisting of officers or other persons,
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with chairmanships, vice chairmanships and secretaryships and such duties and
powers as the President may, from time to time, designate and prescribe. The
Board or the President may, from time to time, suspend, alter, continue or
terminate any of such committees or the powers and functions of such committee.
Section 3. Conduct of Business. Each committee may determine the
procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided in the Bylaws or required by
law. Adequate provision shall be made for notice to members of all meetings;
one-third (1/3) of the members shall constitute a quorum unless the committee
shall consist of one (1) or two (2) members, in which event the presence of each
member shall be required for a quorum; and all matters shall be determined by a
majority vote of the members present. Action may be taken by any committee
without a meeting if all members thereof consent in writing, and the writing or
writings are filed with the minutes of the proceedings of such committee.
ARTICLE V
OFFICERS
Section 1. Generally. The officers of the corporation shall consist of a
President, one or more Vice Presidents (any one or more of whom may be
designated Executive Vice Presidents or Senior Vice Presidents), a Secretary, a
Treasurer and such other officers as may from time to time be appointed by the
Board of Directors. Officers shall be elected by the Board of Directors which
shall consider that subject at its first meeting after every annual meeting of
stockholders. Each officer shall hold office until his successor is elected and
qualified or until his earlier resignation or removal. Any number of offices may
be held by the same person. Any vacancies occurring in officer positions may be
filled at any regular or special meetings of the Board of Directors. One person
may hold more than one of the offices specified in this section and may have
such other titles as the Board of Directors may determine.
Section 2. President. The President shall be the chief executive officer
of the corporation. Subject to the provisions of these Bylaws and to the
direction of the Board of Directors as a whole, the President shall have the
full responsibility for the general management and control of the business and
affairs of the Corporation and shall perform all duties and have all powers
which are commonly incident to the office of chief executive or which are
delegated by the Board of Directors. The President shall have power to sign all
stock certificates, contracts and other instruments of the corporation which are
authorized and shall have general supervision and direction of all of the other
officers, employees and agents of the Corporation.
Section 3. Vice President. There may be such number of Vice Presidents as
the Board of Directors shall appoint. Any such Vice President shall have such
powers and duties as may be delegated by the
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Board of Directors or by the President. A Vice President may be designated by
the Board of Directors to perform the duties and exercise the powers of the
President in the event of the President's absence or disability. In the absence
of the Chairman of the Board and the President, one Vice President so designated
by the Board of Directors shall preside at meetings of the stockholders and the
Board of Directors.
Section 4. Treasurer/Assistant Treasurer. The Treasurer shall have the
responsibility for maintaining the financial records of the corporation and
shall have custody of all monies and securities of the corporation. The
Treasurer shall make such disbursements of the funds of the corporation as are
authorized and shall render from time to time an account of all such
transactions and of the financial condition of the Corporation. The Treasurer
shall also perform such other duties as the Board of Directors or the President
may from time to time prescribe. Without limiting the provisions of Section 1 of
this Article V, the Board of Directors may also elect an Assistant Treasurer, if
deemed necessary or appropriate, who shall have such powers and duties of the
Treasurer, as determined by the Board of Directors or by the President.
Section 5. Secretary/Assistant Secretary. The Secretary shall issue all
authorized notices for, and shall keep minutes of, all meetings of the
stockholders and the Board of Directors. The Secretary shall have charge of the
corporate books and shall perform such other duties as the Board of Directors or
President may from time to time prescribe. Without limiting the provisions of
Section 1 of this Article V, the Board of Directors may also elect an Assistant
Secretary, if deemed necessary or appropriate, who shall have such powers and
duties of the Secretary, as determined by the Board of Directors.
Section 6. Removal. Any officer of the corporation may be removed at any
time, with or without cause, by the affirmative vote of a majority of the Board
of Directors.
Section 7. Action with Respect to Securities of Other Corporations. Unless
otherwise directed by the Board of Directors, the President shall have power to
vote and otherwise act on behalf of the Corporation, in person or by proxy, at
any meeting of stockholders of or with respect to any action of stockholders of
any other corporation in which the Corporation may hold securities and otherwise
to exercise any and all rights and powers which the Corporation may possess by
reason of its ownership of securities in such other corporation.
ARTICLE VI
STOCK
Section 1. Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation,
(i) by the Chairman of the Board of Directors, the
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President or a Vice President and (ii) by the Treasurer or an Assistant
Treasurer, or Secretary or an Assistant Secretary of the Corporation, certifying
the number of shares owned by such holder of stock in the Corporation.
Section 2. Signatures. Any or all of the signatures on a 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 such
person were such officer, transfer agent or registrar at the date of issue.
Section 3. Lost, Destroyed, Stolen or Mutilated 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 such person's legal representative, to
advertise the same in such manner as the Board of Directors shall require and/or
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.
Section 4. Transfers. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these Bylaws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by such person's attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, properly endorsed for transfer and
payment of all necessary transfer taxes; provided, however, that such surrender
and endorsement or payment of taxes shall not be required in any case in which
the officers of the Corporation shall determine to waive such requirement. Every
certificate exchanged, returned or surrendered to the Corporation shall be
marked "CANCELLED," with the date of cancellation, by the Secretary or Assistant
Secretary of the Corporation or the transfer agent. No transfer of stock shall
be valid as against the Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an entry showing from and to
whom transferred.
Section 5. Transfer and Registry Agents. The Corporation may from time to
time maintain one or more transfer offices or agencies and registry offices or
agencies at such place or places as may be determined from time to time by the
Board of Directors.
Section 6. 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 to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and
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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 VII
NOTICES
Section 1. Notices. Except as otherwise specifically provided in these
Bylaws or required by law, all notices required to be given to any shareholder,
director, officer, employee or agent, may in every instance be effectively given
by hand delivery to the recipient, by depositing such notice in the mails,
postage paid, by sending such notice by overnight courier, by prepaid telegram
or mailgram, by telecopy or similar facsimile transmission or by electronic
transmission. Any such notice shall be addressed to such shareholder, director,
officer, employee, or agent at his or her last known address as the same appears
on the books of the Corporation. Except as provided below for electronic
transmission or facsimile delivery to stockholders, the time when such notice is
received, if hand delivered, or dispatched, if delivered through the mails, by
overnight courier, by telegram or mailgram, by telecopy or similar facsimile or
by electronic transmission, shall be the time of the giving of the notice.
Without limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by the Corporation
shall be effective if given by a form of electronic transmission consented to by
the stockholder to whom the notice is given. Any such consent shall be revocable
by the stockholder by written notice to the Corporation. Any such consent shall
be deemed revoked if the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in accordance with
such consent and such inability becomes known to the Secretary or an Assistant
Secretary of the Corporation or to the transfer agent, or to any other person
responsible for the giving of notice; provided, however, the inadvertent failure
to treat such inability as a revocation shall not invalidate any meeting or
other action.
Notice given pursuant to this Section 1 to a stockholder shall be deemed
given: (i) if by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive notice; (ii) if by electronic mail,
when directed to an electronic mail address at which the stockholder has
consented to receive notice; (iii) if by a posting of an electronic network
together with separate notice to the stockholder of such specific posting, upon
the later of such posting and the giving of such separate notice; and (iv) if by
any other form of electronic transmission, when directed to the stockholder. An
affidavit of the Secretary or an assistant secretary or of the transfer agent or
other agent of the Corporation that the notice has been given by a form of
electronic transmission shall, in the absence of fraud, be prima facie evidence
of the facts stated in such affidavit.
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Section 2. Waivers. A written waiver of any notice, signed by a
stockholder, director, officer, employee or agent, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
of the event for which notice is to be given, shall be deemed equivalent to the
notice required to be given to such stockholder, director, officer, employee or
agent. Neither the business nor the purpose of any meeting need be specified in
such a waiver.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Dividends. Subject to the requirements of the DGCL and the
provisions of the Certificate of Incorporation, dividends upon the capital stock
of the Corporation may be declared by the Board of Directors at any regular or
special meeting of the Board of Directors, and may be paid in cash, in property,
or in shares of the Corporation's capital stock. 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 its
absolute discretion, deems proper as a reserve or reserves to meet
contingencies, or for purchasing any of the shares of capital stock, warrants,
rights, options, bonds, debentures, notes, scrip or other securities or
evidences of indebtedness of the Corporation, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for any other
proper purpose, and the Board of Directors may modify or abolish any such
reserve.
Section 2. Disbursements. 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.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 4. Corporate Seal. The corporate seal shall have inscribed on it
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 of
it to be impressed or affixed or reproduced or otherwise.
ARTICLE IX
INDEMNIFICATION
Section 1. Power to Indemnify in Actions, Suits or Proceedings Other than
Those by or in the Right of the Corporation. Subject to Section 3 of this
Article IX, the Corporation shall indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right
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of the Corporation) by reason of the fact that such person is or was a director
or officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director or officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, such person
had no reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that such person did not act in good faith and in a
manner which such person reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
Section 2. Power to Indemnify in Actions, Suits of Proceedings by or in
the Right of the Corporation. Subject to Section 3 of this Article IX, the
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director or officer of the Corporation, or is
or was a director or officer of the Corporation serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation;
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under
this Article IX (unless ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standard of conduct set forth in
Section I or Section 2 of this Article IX, as the case may be. Such
determination shall be made (i) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(ii) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (iii) by the stockholders. To
the
17
extent, however, that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such, person in connection therewith,
without the necessity of authorization in the specific case.
Section 4. Good Faith Defined. For purposes of any determination under
Section 3 of this Article XI, a person shall be deemed to have acted in good
faith and in a manner such person reasonably believed to be in or not opposed to
the best interests of the Corporation, or, with respect to any criminal action
or proceeding, to have had no reasonable cause to believe his or her conduct was
unlawful, if such person's action is based on the records or books of account of
the Corporation or another enterprise, or on information supplied to such person
by the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 4
shall mean any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise of which such person is or was serving
at the request of the Corporation as a director, officer, employee or agent. The
provisions of this Section 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed to have met the
applicable standard of conduct set forth in Section 1 or 2 of this Article IX,
as the case may be.
Section 5. Indemnification by a Court. Notwithstanding any contrary
determination in the specific case under Section 3 of this Article IX, and
notwithstanding the absence of any determination thereunder, any director or
officer may apply to the Court of Chancery of the State of Delaware or any other
court of competent jurisdiction in the State of Delaware for indemnification to
the extent otherwise permissible under Sections 1 and 2 of this Article IX. The
basis of such indemnification by a court shall be a determination by such court
that indemnification of the director or officer is proper in the circumstances
because such person has met the applicable standards of conduct set forth in
Section 1 or 2 of this Article IX, as the case may be. Neither a contrary
determination in the specific case under Section 3 of this Article IX nor the
absence of any such determination shall be a defense to such application or
create a presumption that the director or officer seeking indemnification has
not met any applicable standard of conduct. Notice of any application for
indemnification pursuant to this Section 5 shall be given to the Corporation
promptly upon the filing of such application. If successful, in whole or in
part, the director or officer seeking indemnification shall also be entitled to
be paid the expense of prosecuting such application.
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Section 6. Expenses Payable in Advance. Expenses incurred by a director or
officer in defending or investigating a threatened or pending action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding 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 such person is not entitled to be indemnified by the
Corporation as authorized in this Article IX.
Section 7. Nonexclusivity of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by or granted pursuant
to this Article IX shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be entitled under
the Certificate of Incorporation or any Bylaw, agreement, contract, vote of
stockholders or disinterested directors or pursuant to the direction, (howsoever
embodied) of any court of competent jurisdiction or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that indemnification
of the persons specified in Section 1 and 2 of this Article IX shall be made to
the fullest extent permitted by law. The provisions of this Article IX shall not
be deemed to preclude the indemnification of any person who is not specified in
Section 1 or 2 of this Article IX but whom the Corporation has the power or
obligation to indemnify under the provisions of the DGCL, or otherwise.
Section 8. Insurance. The Corporation shall purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
Corporation, or is or was a director or officer of the Corporation serving at
the request of the Corporation as a director, officer, manager, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the Corporation would have the power or
the obligation to indemnify such person against such liability under the
provisions of this Article IX. With respect to persons who are former officers
or directors of the Corporation or who served at the request of the Corporation
as a director, officer, manager, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
such insurance shall be maintained for a period of four (4) years after
termination of service.
Section 9. Certain Definitions. For purposes of this Article IX,
references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, employee or agent, of another corporation, partnership,
joint venture, trust, employee benefit plan or other
19
enterprise, shall stand in the same position under the provisions of this
Article IX with respect to, the resulting or surviving corporation as such so
person would have with respect to such constituent corporation if its separate
existence had continued. For purposes of this Article IX, references to "fines"
shall include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director or
officer with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this Article
IX. For purposes of these Bylaws, any reference to the masculine or feminine
gender shall be deemed to include either gender.
Section 10. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article IX shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
Section 11. Limitation on Indemnification. Notwithstanding anything
contained in this Article IX to the contrary, except for proceedings to enforce
rights to indemnification (which shall be governed by Section 5), the
Corporation shall not be obligated to indemnify any director or officer (or his
or her heirs, executors or personal or legal representatives) or advance
expenses in connection with a proceeding initiated by such person unless such
proceeding was authorized or consented to by the Board of Directors of the
Corporation.
Section 12. Indemnification of Employees and Agents. The Corporation may,
to the extent authorized from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of expenses to employees and
agents of the Corporation similar to those conferred in this Article IX to
directors and officers of the Corporation.
ARTICLE X
AMENDMENTS
Section 1. Amendments. These Bylaws may be altered, amended or repealed,
in whole or in part, or new Bylaws may be adopted by a majority vote of the
entire Board of Directors or by the stockholders as provided in the Certificate
of Incorporation.
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Section 2. Entire Board of Directors. As used in this Article X and in
these Bylaws generally, the term "entire Board of Directors" means the total
number of directors which the Corporation would have if there were no vacancies.
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AMENDED AND RESTATED BY-LAWS OF
ENHERENT CORP.
Pursuant to a resolution adopted by the board of directors of enherent
Corp., a Delaware corporation, dated as of April 22, 2005, the second paragraph
of Article IV, Section 1 is deleted and replaced with the following:
The Board of Directors shall further designate a nominating and governance
committee, whose purpose shall be to assist the Board of Directors in nominating
members of the Board of Directors and its committees and addressing corporate
governance questions, all as more specifically set forth in the charter for such
committee as adopted by the Board of Directors and such committee.