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EXHIBIT 3.2
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RESTATED BY-LAWS
OF
PER-SE TECHNOLOGIES, INC.
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Incorporated under the Laws of the
State of Delaware
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Restated as of January 20, 2000
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TABLE OF CONTENTS
Page
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ARTICLE I OFFICES................................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS...............................................................1
Section 1 Place of Meetings......................................................................1
Section 2 Annual Meeting.........................................................................1
Section 3 Special Meetings.......................................................................1
Section 4 Notice of Meetings.....................................................................1
Section 5 Notice of Nomination of Directors......................................................2
Section 6 Notice of Other Business...............................................................3
Section 7 List of Stockholders...................................................................3
Section 8 Quorum.................................................................................4
Section 9 Voting.................................................................................4
Section 10 Proxies................................................................................4
Section 11 Inspectors of Elections................................................................4
Section 12 Action without a Meeting...............................................................5
ARTICLE III BOARD OF DIRECTORS.....................................................................5
Section 1 Powers.................................................................................5
Section 2 Election and Term......................................................................6
Section 3 Number.................................................................................6
Section 4 Quorum and Manner of Acting............................................................6
Section 5 Organization Meeting...................................................................6
Section 6 Regular Meetings.......................................................................6
Section 7 Special Meetings; Notice...............................................................6
Section 8 Removal of Directors...................................................................7
Section 9 Resignations...........................................................................7
Section 10 Vacancies..............................................................................7
Section 11 Compensation of Directors..............................................................7
Section 12 Action Without a Meeting...............................................................7
Section 13 Telephonic Participation in Meetings...................................................8
Section 14 Committees of the Board of Directors...................................................8
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ARTICLE IV OFFICERS...............................................................................8
Section 1 Principal Officers.....................................................................8
Section 2 Election and Term of Office............................................................8
Section 3 Other Officers.........................................................................8
Section 4 Removal................................................................................8
Section 5 Resignations...........................................................................9
Section 6 Vacancies..............................................................................9
Section 7 Chairman of the Board..................................................................9
Section 8 Vice Chairmen..........................................................................9
Section 9 President..............................................................................9
Section 10 Vice Presidents........................................................................9
Section 11 Treasurer..............................................................................9
Section 12 Secretary.............................................................................10
Section 13 Salaries..............................................................................10
ARTICLE V SHARES AND THEIR TRANSFER.............................................................10
Section 1 Certificate for Stock.................................................................10
Section 2 Stock Certificate Signature...........................................................10
Section 3 Stock Ledger..........................................................................10
Section 4 Cancellation..........................................................................10
Section 5 Registrations of Transfers of Stock...................................................11
Section 6 Regulations...........................................................................11
Section 7 Lost, Stolen, Destroyed or Mutilated Certificates.....................................11
Section 8 Record Dates..........................................................................11
ARTICLE VI MISCELLANEOUS PROVISIONS..............................................................11
Section 1 Corporate Seal........................................................................11
Section 2 Voting of Stocks Owned by the Corporation.............................................11
Section 3 Dividends.............................................................................12
Section 4 Indemnification and Insurance.........................................................12
ARTICLE VII AMENDMENTS ...........................................................................13
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RESTATED BY-LAWS
OF
PER-SE TECHNOLOGIES, INC.
(a Delaware corporation)
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ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware
shall be located in the City of Wilmington, County of New Castle. The
Corporation may establish or discontinue, from time to time, such other offices
within or without the State of Delaware as may be deemed proper for the conduct
of the Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of stockholders shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors, or as shall be specified
in the respective notices, or waivers of notice, thereof.
Section 2. Annual Meeting. The annual meeting of stockholders for the
election of Directors and the transaction of other business shall be held on
such date and at such time and place as may be designated by the Board of
Directors. At each annual meeting, the stockholders entitled to vote shall
elect a Board of Directors and may transact such other proper business as may
come before the meeting.
Section 3. Special Meetings. A special meeting of the stockholders, or
of any class thereof entitled to vote, for any purpose or purposes, may be
called at any time by the Chairman of the Board, if any, or the President or by
order of the Board of Directors and shall be called by the President or the
Secretary upon the written request of stockholders holding of record at least
50% of the outstanding shares of stock of the Corporation entitled to vote at
such meeting. Such written request shall state the purpose or purposes for
which such meeting is to be called.
Section 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of stockholders, whether annual or special,
stating the place, date and hour of the meeting
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shall be given not less than ten days nor more than sixty days before the date
on which the meeting is to be held to each stockholder of record entitled to
vote thereat by delivering a notice thereof to him personally or by mailing
such notice in a postage prepaid envelope directed to him at his address as it
appears on the records of the Corporation, unless he shall have filed with the
Secretary of the Corporation a written request that notices intended for him be
directed to another address, in which case such notice shall be directed to him
at the address designated in such request. Notice shall not be required to be
given to any stockholder who shall waive such notice in writing, whether prior
to or after such meeting, or who shall attend such meeting in person or by
proxy unless such attendance is for the express purpose of objecting, at the
beginning of such meeting, to the transaction of any business because the
meeting is not lawfully called or convened. Every notice of a special meeting
of the stockholders shall also state the purpose or purposes for which it is
called.
Section 5. Notice of Nomination of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as Directors of the Corporation. Nominations of persons for election
as Directors of the Corporation may be made at a meeting of stockholders only
(i) by or at the direction of the Board of Directors, (ii) by any nominating
committee or person appointed by the Board or (iii) 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 5. Such
nominations, other than those made by or at the direction of the Board or by
any nominating committee or person appointed by 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, in the case of an annual
meeting of stockholders, not less than 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 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 15th 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 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 15th 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. Such stockholder's notice to
the Secretary shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or re-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 and number of shares of
capital stock of the Corporation which are beneficially owned by the person and
(iv) any other information relating to the person that is required to be
disclosed in solicitations for proxies for election of directors pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as now or hereafter
amended; and (b) as to the stockholder giving the notice (i) the name and
record address of such stockholder and (ii) the class and number of shares of
capital stock of the Corporation which are beneficially owned by such
stockholder. The Corporation may require any proposed nominee to furnish such
other information as may reasonably be required by the Corporation to determine
the eligibility of such proposed nominee to serve as a Director of the
Corporation.
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No person shall be eligible for election as a Director of the
Corporation unless nominated in accordance with the procedures set forth
herein. 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
foregoing procedures, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
Section 6. Notice of Other Business. To be properly brought before the
meeting, business must be either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board, (b) otherwise
properly brought before the meeting by or at the direction of the Board, or (c)
otherwise properly brought before the meeting by a stockholder. In addition to
any other applicable requirements, for business to be properly brought before
an annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 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 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 15th 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.
A stockholder's notice to the Secretary shall set forth with respect to each
matter the 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 the stockholder proposing such business, (iii) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder, and (iv) any material interest of the stockholder in such
business.
Notwithstanding anything in the By-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 6, provided, however, that nothing in this
Section 6 shall be deemed to preclude discussion by any stockholder of any
business properly brought before the annual meeting.
The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 6, and if
he should so determine, he shall so declare to the meeting, and any such
business not properly brought before the meeting shall not be transacted.
Section 7. List of Stockholders. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of the stock ledger
to prepare and make, at least ten days before every meeting of the
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each stockholder and
the number of shares registered in his name. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days
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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 be
kept and produced at the time and place of the meeting during the whole time
thereof and subject to the inspection of any stockholder who may be present.
The original or duplicate ledger shall be the only evidence as to who are the
stockholders entitled to examine such list or the books of the Corporation or
to vote in person or by proxy at such meeting.
Section 8. Quorum. At each meeting of the stockholders, the holders of
record of a majority of the issued and outstanding stock of the Corporation
entitled to vote at such meeting, present in person or by proxy, shall
constitute a quorum for the transaction of business, except as otherwise
provided by law, the Certificate of Incorporation or these By-laws. In the
absence of a quorum, any officer entitled to preside at, or act as Secretary
of, such meeting shall have the power to adjourn the meeting from time to time
until a quorum shall be constituted.
Section 9. Voting. Every stockholder of record who is entitled to vote
shall, at every meeting of the stockholders, be entitled to one vote for each
share of stock held by him on the record date; except, however, that shares of
its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held by the Corporation, shall neither be entitled to vote
nor counted for quorum purposes. Nothing in this Section shall be construed as
limiting the right of the Corporation to vote its own stock held by it in a
fiduciary capacity. At all meetings of the stockholders, a quorum being
present, all matters shall be decided by majority vote of the shares of stock
entitled to vote held by stockholders present in person or by proxy, except as
otherwise required by law or the Certificate of Incorporation. Unless demanded
by a stockholder of the Corporation present in person or by proxy at any
meeting of the stockholders and entitled to vote thereat or so directed by the
chairman of the meeting or required by law, the vote thereat on any question
need not be by written ballot. On a vote by written ballot, each ballot shall
be signed by the stockholder voting, or in his name by his proxy, if there be
such proxy, and shall state the number of shares voted by him and the number of
votes to which each share is entitled.
Section 10. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A
proxy acting for any stockholder shall be duly appointed by an instrument in
writing subscribed by such stockholder. No proxy shall be valid after the
expiration of three years from the date thereof unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest
sufficient in law to support an irrevocable power. A stockholder may revoke any
proxy which is not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date with the Secretary of the Corporation.
Section 11. Inspectors of Elections. The Board of Directors, in
advance of any stockholder meeting, shall appoint an inspector of elections to
act at such meeting, and any adjournment thereof,
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and make a written report thereof. In case any person appointed fails to appear
or act, the vacancy may be filled by an alternate appointed by the Board in
advance of the meeting or at the meeting by the person presiding thereat. The
inspector, before entering upon discharge of his duties, shall take and sign an
oath faithfully to execute the duties of inspector with strict impartiality and
according to the best of his ability.
Section 12. Action without a Meeting. Any action required to be taken
at any annual or special meeting of stockholders or any action which may be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without a vote, if a consent in writing setting forth the action so
taken shall be signed by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted. Prompt notice of the taking of the corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. In order that the Corporation
may determine the stockholders entitled to consent to corporate action in
writing without a meeting, 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 date shall not be
more than ten (10) days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within ten (10) days after the date on which such a request is
received, adopt a resolution fixing the record date. If no record date has been
fixed by the Board of Directors within ten (10) days of the date on which such
a request is received, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is required by applicable law, shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
proceedings of stockholders meetings are recorded, to the attention of the
Secretary of the Corporation. Delivery shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board of Directors and prior action by the Board of Directors is required
by applicable law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close
of business on the date on which the Board of Directors adopts the resolution
taking such prior action.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. Except as otherwise provided by law or in the
Certificate of Incorporation, the business and affairs of the Corporation shall
be managed under the direction of the Board of Directors.
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Section 2. Election and Term. Except as otherwise provided by law,
Directors shall be elected at the annual meeting of stockholders and shall hold
office until the next annual meeting of stockholders and until their successors
are elected and qualified, or until they sooner die, resign or are removed. At
each annual meeting of stockholders, at which a quorum is present, the persons
receiving a plurality of the votes cast shall be the Directors. Acceptance of
the office of Director may be expressed orally or in writing, and attendance at
the organization meeting shall constitute such acceptance.
Section 3. Number. The number of Directors shall be such number as
shall be determined from time to time by the Board of Directors, but shall not
be less than three nor more than ten.
Section 4. Quorum and Manner of Acting. Unless otherwise provided by
law, the presence of 50% of the whole Board of Directors shall be necessary to
constitute a quorum for the transaction of business. In the absence of a
quorum, a majority of the Directors present may adjourn the meeting from time
to time until a quorum shall be present. Notice of any adjourned meeting need
not be given. At all meetings of Directors, a quorum being present, all matters
shall be decided by the affirmative vote of a majority of the Directors
present, except as otherwise required by law, the Certificate of Incorporation
or these By-laws. The Board of Directors may hold its meetings at such place or
places within or without the State of Delaware as the Board of Directors may
from time to time determine or as shall be specified in the respective notices,
or waivers of notice, thereof.
Section 5. Organization Meeting. Immediately after each annual meeting
of stockholders for the election of Directors, the Board of Directors shall
meet at the place of the annual meeting of stockholders for the purpose of
organization, the election of officers and the transaction of other business.
Notice of such meeting need not be given. If such meeting is held at any other
time or place, notice thereof must be given as hereinafter provided for special
meetings of the Board of Directors, subject to the execution of a waiver of the
notice thereof signed by, or the attendance at such meeting of, all Directors
who may not have received such notice.
Section 6. Regular Meetings. Regular meetings of the Board of
Directors may be held at such time and place, within or without the State of
Delaware, as shall from time to time be determined by the Board of Directors.
After there has been such determination, and notice thereof has been once given
to each member of the Board of Directors as hereinafter provided for special
meetings, regular meetings may be held without further notice being given.
Section 7. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, if any,
the President or by a majority of the Directors. Notice of each such meeting
shall be mailed to each Director, addressed to him at his residence or usual
place of business, at least five days before the date on which the meeting is
to be held, or shall be sent to him at such place by facsimile, telegraph or
cable, or be delivered personally or by telephone, not later than the day
before the day on which such meeting is to be held. Each such notice shall
state the time and place of the meeting and, as may be required, the purposes
thereof.
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Section 8. Notice of any meeting of the Board of Directors need not be
given to any Director if he shall sign a written waiver thereof either before
or after the time stated therein for such meeting, or if he shall be present at
the meeting. Unless limited by law, the Certificate of Incorporation, these
By-laws or the terms of the notice thereof, any and all business may be
transacted at any meeting without the notice thereof having specifically
identified the matters to be acted upon.
Section 9. Removal of Directors. Any Director or the entire Board of
Directors may be removed, with or without cause, at any time, by action of the
holders of record of a majority of the issued and outstanding stock of the
Corporation entitled to vote thereon (i) present in person or by proxy at a
meeting of such stockholders or (ii) by a consent in writing in the manner
contemplated in Section 12 of Article II, and the vacancy or vacancies in the
Board of Directors caused by any such removal may be filled by action of such a
majority at such meeting or at any subsequent meeting or by consent.
Section 10. Resignations. Any Director of the Corporation may resign
at any time by giving written notice to the Chairman of the Board, if any, the
President or the Secretary of the Corporation. The resignation of any Director
shall take effect upon receipt of notice thereof or at such later time as shall
be specified in such notice; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 11. Vacancies. Any vacancy occurring in the Board of Directors
may be filled by the affirmative vote of a majority of the remaining Directors
though less than a quorum of the Board of Directors, or by the sole remaining
Director, as the case may be, or if the vacancy is not so filled, or if no
Director remains, by the affirmative vote of a majority of the stockholders
entitled to vote thereon. A Director elected to fill a vacancy shall serve the
unexpired term of his predecessor in office, or, if such vacancy occurs by
reason of an amendment to these By-laws increasing the number of Directors,
until the next election of Directors by the stockholders, and until his
successor has been elected and qualified, or until he sooner dies, resigns or
is removed.
Section 12. Compensation of Directors. Directors, as such, shall not
receive any stated salary for their services, but, by resolution of the Board,
a specific sum fixed by the Board plus expenses may be allowed for attendance
at each regular or special meeting of the Board; provided, however, that
nothing herein contained shall be construed to preclude any Director from
serving the Corporation or any parent or subsidiary corporation thereof in any
other capacity and receiving compensation therefore.
Section 13. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if a written consent thereto is signed by all members of the Board, and
such written consent is filed with the minutes or proceedings of the Board.
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Section 14. Telephonic Participation in Meetings. Members of the Board
of Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
Section 15. Committees of the Board of Directors. The Board of
Directors, by resolution adopted by a majority of the full Board of Directors,
may designate from among its members an executive committee and one or more
other committees, each consisting of one or more directors. Except as
prohibited by law, each committee shall have the authority set forth in the
resolution of the Board of Directors establishing such committee. Unless the
Board of Directors otherwise provides, each committee designated by the Board
of Directors may make, alter and repeal rules for the conduct of its business.
In the absence of such rules each committee shall conduct its business in the
same manner as the Board of Directors conducts its business pursuant to Article
III of these By-laws.
ARTICLE IV
OFFICERS
Section 1. Principal Officers. The Board of Directors shall elect a
President, a Secretary and a Treasurer, and may in addition elect a Chairman of
the Board, one or more Vice Chairmen of the Board, one or more Vice-Presidents
and such other officers as it deems fit; the President, the Secretary, the
Treasurer, the Chairman of the Board, if any, the Vice Chairmen of the Board,
if any, and the Vice Presidents, if any, being the principal officers of the
Corporation. One person may hold, and perform the duties of, any two or more of
said offices; provided, however, that the offices of President and Secretary
shall not be held by one person coincidentally.
Section 2. Election and Term of Office. The principal officers of the
Corporation shall be elected annually by the Board of Directors at the
organization meeting thereof. Each such officer shall hold office until his
successor is elected and qualified, or until his earlier death, resignation or
removal.
Section 3. Other Officers. In addition, the Board may elect, or the
Chairman of the Board, if any, or the President may appoint, such other
officers as they deem fit. Any such other officers chosen by the Board of
Directors shall be subordinate officers and shall hold office for such period,
have such authority and perform such duties as the Board of Directors, the
Chairman of the Board, if any, or the President may from time to time
determine.
Section 4. Removal. Any officer may be removed, either with or without
cause, at any time, by resolution adopted by the Board of Directors at any
regular meeting of the Board, or at any special meeting of the Board called for
that purpose, at which a quorum is present.
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Section 5. Resignations. Any officer may resign at any time by giving
written notice to the Chairman of the Board, if any, the President, the
Secretary or the Board of Directors. Any such resignation shall take effect
upon 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 6. Vacancies. A vacancy in any office may be filled for the
unexpired portion of the term in the manner prescribed in these By-laws for
election or appointment to such office for such term.
Section 7. Chairman of the Board. The Chairman of the Board of
Directors, if elected, shall preside, if present, at all meetings of the Board
of Directors and meetings of the stockholders, if present thereat, and shall
have and perform such other duties as from time to time may be assigned by the
Board of Directors.
Section 8. Vice Chairmen. Each Vice Chairman shall have the general
powers and duties as shall be delegated to him by the Chairman of the Board of
Directors or as shall be established by resolution of the Board of Directors.
Section 9. President. The President shall be the chief executive
officer of the Corporation, and shall have the general powers and duties of
supervision and management usually vested in the office of the President and
Chief Executive Officer of a corporation. He shall preside, in the absence or
non-election of the Chairman of the Board of Directors, at all meetings of the
stockholders and the Board of Directors, and shall have general supervision,
direction and control of the business of the Corporation. Except as the Board
of Directors shall authorize the execution thereof in some other manner, he
shall execute bonds, mortgages, and other contracts on behalf of the
Corporation, and shall cause the seal to be affixed to any instrument requiring
it and when so affixed the seal shall be attested by the signature of the
Secretary or the Treasurer.
Section 10. Vice Presidents. Each Vice President shall have such
powers and shall perform such duties as shall be assigned to him by the Board
of Directors or the President.
Section 11. Treasurer. The Treasurer shall have charge and custody of,
and be responsible for, all funds and securities of the Corporation. He shall
exhibit at all reasonable times his books of account and records to any of the
Directors of the Corporation upon application during business hours at the
office of the Corporation where such books and records shall be kept; when
requested by the Board of Directors, he shall render a statement of the
condition of the finances of the Corporation at any meeting of the Board or at
the annual meeting of stockholders; he shall receive, and give receipt for,
moneys due and payable to the Corporation from any source whatsoever; in
general, he shall perform all the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him by the Board
of Directors or the President. The Treasurer shall give such bond, if any, for
the faithful discharge of his duties as the Board may require.
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Section 12. Secretary. The Secretary, if present, shall act as
secretary at all meetings of the Board of Directors and of the stockholders and
keep the minutes thereof in a book or books to be provided for that purpose; he
shall see that all notices required to be given by the Corporation are duly
given and served; he shall have charge of the stock records of the Corporation;
he shall see that all reports, statements and other documents required by law
are properly kept and filed; and in general he shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Board of Directors or the President.
Section 13. Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or an authorized committee
thereof, and the salaries of any other officers may be fixed by the President.
ARTICLE V
SHARES AND THEIR TRANSFER
Section 1. Certificate for Stock. Every stockholder of the Corporation
shall be entitled to a certificate or certificates, to be in such form as the
Board of Directors shall prescribe, certifying the number of shares of the
capital stock of the Corporation owned by him. No certificate shall be issued
for partly paid shares.
Section 2. Stock Certificate Signature. The certificates for such
stock shall be numbered in the order in which they shall be issued and shall be
signed by the Chairman of the Board, if any, or the President and the Secretary
or Treasurer of the Corporation and its seal shall be affixed thereto. If such
certificate is countersigned (i) by a transfer agent other than the Corporation
or its employee, or (ii) by a registrar other than the Corporation or its
employee, the signatures of such officers of the Corporation may be facsimiles.
In case any officer of the Corporation 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, it may be issued by the
Corporation with the same effect as if he were such officer at the date of
issue.
Section 3. Stock Ledger. A record shall be kept by the Secretary or by
any other officer, employee or agent designated by the Board of Directors, of
the name of each person, firm or corporation holding capital stock of the
Corporation, the number of shares represented by, and the respective dates of,
each certificate for such capital stock, and in case of cancellation of any
such certificate, the respective dates of cancellation.
Section 4. Cancellation. Every certificate surrendered to the
Corporation for exchange or registration of transfer shall be cancelled, and no
new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so cancelled,
except, subject to Section 7 of this Article V, in cases provided for by
applicable law.
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Section 5. Registrations of Transfers of Stock. Registrations of
transfers of shares of the capital stock of the Corporation shall be made on
the books of the Corporation on surrender of the certificate or certificates
for such shares properly endorsed and the payment of all taxes thereon. The
person in whose name shares of stock stand on the books of the Corporation
shall be deemed the owner thereof for all purposes as regards the Corporation;
provided, however, that whenever any transfer of shares shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of the transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and the transferee request the Corporation to do
so.
Section 6. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with the Certificate of
Incorporation or these By-laws, concerning the issue, transfer and registration
of certificates for shares of the stock of the Corporation. It may appoint, or
authorize any principal officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars, and may
require all certificates of stock to bear the signature or signatures of any of
them.
Section 7. Lost, Stolen, Destroyed or Mutilated Certificates. Before
any certificates for stock of the Corporation shall be issued in exchange for
certificates which shall become mutilated or shall be lost, stolen or
destroyed, proper evidence of such loss, theft, mutilation or destruction shall
be procured for the Board of Directors, if it so requires.
Section 8. Record Dates. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a date as a record date for any such determination of stockholders. Such record
date shall not more than sixty (60) days and, in the case of a meeting of
stockholders, not less than ten (10) days prior to the date on which the
particular action, requiring such determination of stockholders, is to be
taken.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Corporate Seal. The Board of Directors shall provide a
corporate seal, which shall be in the form of a circle and shall bear the name
of the Corporation and words and figures showing that it was incorporated in
the State of Delaware in the year 1985. The Secretary shall be the custodian of
the seal. The Board of Directors may authorize a duplicate seal to be kept and
used by any other officer.
Section 2. Voting of Stocks Owned by the Corporation. The Board of
Directors may authorize any person on behalf of the Corporation to attend, vote
and grant proxies to be used at any meeting of stockholders of any corporation
(except the Corporation) in which the Corporation may
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hold stock. Nothing in this Section shall be construed as limiting the right of
the Corporation to vote its own stock held by it in a fiduciary capacity.
Section 3. Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefor, at any regular or special meeting, declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the Corporation available
for dividends such sum or sums as the Directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the Corporation.
Section 4. Indemnification and Insurance.
(a) Right to Indemnification. The Corporation shall indemnify and
hold harmless, to the fullest extent permitted by the Delaware General
Corporation Law as it presently exists or may hereafter be amended, any person
who was or is made or is threatened to be made a party or is otherwise involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "proceeding") by reason of the fact that he, or a person for
whom he is the legal representative, 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 or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses reasonably incurred by such person. The Corporation shall
be required to indemnify a person in connection with a proceeding initiated by
such person only if the proceeding was authorized by the Board of Directors of
the Corporation. The right provided in this Section 4(a) is a contract right.
(b) Prepayment of Expenses. The Corporation shall pay the
expenses incurred by an officer or director in defending or investigating any
proceeding in advance of its final disposition; provided, however, that, if
required by the Delaware General Corporation Law, the payment of expenses
incurred by a director or officer in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the director or
officer to repay all amounts advanced if it should ultimately be determined
that the director or officer is not entitled to be indemnified under this
Section or otherwise. The right provided in this Section 4(b) is a contract
right.
(c) Claims. If a claim for indemnification or payment of expenses
under this Section is not paid in full within sixty days after a written claim
therefor has been received by the Corporation, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action, the Corporation shall have the burden of proving that the claimant was
not entitled to the requested indemnification or payment of expenses under
applicable law.
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(d) Non-Exclusivity of Rights. The rights conferred on any person
by this Section shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of the Certificate
of Incorporation, these Bylaws, agreement, vote of stockholders or
disinterested directors or otherwise.
(e) Other Indemnification. The Corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or non-profit entity shall be reduced by any amount such
person may collect as indemnification from such other corporation, partnership,
joint venture, trust, enterprise or non-profit enterprise.
(f) 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 or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify him against such liability under the Delaware General Corporation
Law.
(g) Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Section shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE VII
AMENDMENTS
These By-laws of the Corporation may be altered, amended or repealed
by the Board of Directors at any regular or special meeting of the Board of
Directors or by the affirmative vote of the holders of record of a majority of
the issued and outstanding stock of the Corporation entitled to vote thereon
(i) present in person or by proxy at a meeting of holders of such stock or (ii)
by a consent in writing in the manner contemplated in Section 12 of Article II,
provided, however, that notice of the proposed alteration, amendment or repeal
is contained in the notice of such meeting. By-laws, whether made or altered by
the stockholders or by the Board of Directors, shall be subject to alteration
or repeal by the stockholders as in this Article VII above provided.
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