EXHIBIT 3.4
BYLAWS
OF
T-NETIX, INC.
A DELAWARE CORPORATION
TABLE OF CONTENTS
ARTICLE ONE: OFFICES......................................................
1.1 Registered Office and Agent.....................................
1.2 Other Offices...................................................
ARTICLE TWO: MEETINGS OF STOCKHOLDERS.....................................
2.1 Annual Meeting..................................................
2.2 Special Meeting.................................................
2.3 Place of Meetings...............................................
2.4 Notice..........................................................
2.5 Notice of Stockholder Business; Nomination of
Director Candidates..........................................
2.6 Voting List.....................................................
2.7 Quorum..........................................................
2.8 Required Vote; Withdrawal of Quorum.............................
2.9 Method of Voting; Proxies.......................................
2.10 Record Date.....................................................
2.11 Conduct of Meeting..............................................
2.12 Inspectors......................................................
ARTICLE THREE: DIRECTORS..................................................
3.1 Management......................................................
3.2 Number; Qualification; Election; Term...........................
3.3 Change in Number................................................
3.4 Vacancies.......................................................
3.5 Meetings of Directors...........................................
3.6 First Meeting...................................................
3.7 Election of Officers............................................
3.8 Regular Meetings................................................
3.9 Special Meetings................................................
3.10 Notice..........................................................
3.11 Quorum; Majority Vote...........................................
3.12 Procedure.......................................................
3.13 Presumption of Assent...........................................
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3.14 Compensation....................................................
ARTICLE FOUR: COMMITTEES..................................................
4.1 Designation.....................................................
4.2 Number; Qualification; Term.....................................
4.3 Authority.......................................................
4.4 Committee Changes...............................................
4.5 Alternate Members of Committees.................................
4.6 Regular Meetings................................................
4.7 Special Meetings................................................
4.8 Quorum; Majority Vote...........................................
4.9 Minutes.........................................................
4.10 Compensation....................................................
4.11 Responsibility..................................................
ARTICLE FIVE: NOTICE......................................................
5.1 Method..........................................................
5.2 Waiver..........................................................
ARTICLE SIX: OFFICERS.....................................................
6.1 Number; Titles; Term of Office..................................
6.2 Removal.........................................................
6.3 Vacancies.......................................................
6.4 Authority.......................................................
6.5 Compensation....................................................
6.6 Chairman of the Board...........................................
6.7 Chief Executive Officer.........................................
6.8 President.......................................................
6.9 Vice Presidents.................................................
6.10 Treasurer.......................................................
6.11 Assistant Treasurers............................................
6.12 Secretary.......................................................
6.13 Assistant Secretaries...........................................
6.14 Vice Chairman of the Board......................................
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS..............................
7.1 Certificates for Shares.........................................
7.2 Replacement of Lost or Destroyed Certificates...................
7.3 Transfer of Shares..............................................
7.4 Registered Stockholders.........................................
7.5 Regulations.....................................................
7.6 Legends.........................................................
ARTICLE EIGHT: MISCELLANEOUS PROVISIONS...................................
8.1 Dividends.......................................................
8.2 Reserves........................................................
8.3 Books and Records...............................................
8.4 Fiscal Year.....................................................
8.5 Seal............................................................
8.6 Resignations....................................................
8.7 Securities of Other Corporations................................
8.8 Telephone Meetings..............................................
8.9 Action Without a Meeting........................................
8.10 Invalid Provisions..............................................
8.11 Mortgages, etc..................................................
8.12 Headings........................................................
8.13 References......................................................
8.14 Amendments......................................................
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BYLAWS
OF
T-NETIX, INC.
A DELAWARE CORPORATION
PREAMBLE
These bylaws' are subject to, and governed by, the General Corporation Law
of the State of Delaware (the "DELAWARE CORPORATION LAW") and the certificate of
incorporation ("CERTIFICATE OF INCORPORATION") of T-NETIX, Inc., a Delaware
corporation (the "CORPORATION"). In the event of a direct conflict between the
provisions of these bylaws and the mandatory provisions of the Delaware
Corporation Law or the provisions of the Certificate of Incorporation, such
provisions of the Delaware Corporation Law or the Certificate of Incorporation,
as the case may be, will be controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
1.2 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
of the Corporation may from time to time determine or as the business of the
Corporation may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year 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 or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may be properly brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called by the board of directors pursuant to a resolution adopted by a majority
of the Classified Directors (as defined in Section 3.2 hereof) then serving, by
the Chairman of the Board, or by any holder or holders of record of at least
twenty-five percent (25%) of the outstanding shares of capital stock of the
Corporation then entitled to vote on any matter for which the respective special
meeting is being called. A special meeting shall be held on such date and at
such time as shall be designated by the person(s) calling the meeting and stated
in the notice of the meeting or in a duly executed waiver of notice of such
meeting. Only such business shall be transacted at a special meeting as may be
stated or indicated in the notice of such meeting given in accordance with these
bylaws or in a duly executed waiver of notice of such meeting.
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2.3 Place of Meetings. An annual meeting of stockholders may be held
at any place within or without the State of Delaware designated by the board of
directors. A special meeting of stockholders may be held at any place within or
without the State of Delaware designated in the notice of the meeting or a duly
executed waiver of notice of such meeting. Meetings of stockholders shall be
held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and time
of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called, shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting,
either personally or by mail, by or at the direction of the Chairman of the
Board, the Secretary, or the officer or person(s) calling the meeting, to each
stockholder of record entitled to vote at such meeting. If such notice is to be
sent by mail, it shall be directed to such stockholder 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 to him be mailed to
some other address, in which case it shall be directed to him at such other
address. Notice of any meeting of stockholders shall not be required to be given
to any stockholder who shall attend such meeting in person or by proxy and shall
not, at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 Notice of Stockholder Business; Nomination of Director Candidates.
(a) At annual meetings of the stockholders, only such business
shall be conducted as shall have been brought before the meetings (i) pursuant
to the Corporation's notice of meeting, (ii) by or at the direction of the board
of directors, or (iii) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
Section 2.5, who shall be entitled to vote at such meeting, and who complies
with the notice procedures set forth in this Section 2.5.
(b) Only persons who are nominated in accordance with the
procedures set forth in these bylaws shall be eligible to serve as directors.
Nominations of persons for election to the board of directors may be made at a
meeting of stockholders (i) by or at the direction of the board of directors or
(ii) by any stockholder of the Corporation who is a stockholder of record at the
time of giving of notice provided for in this Section 2.5, who shall be entitled
to vote for the election of directors at the meeting, and who complies with the
notice procedures set forth in this Section 2.5.
(c) A stockholder must give timely, written notice to the
Secretary of the Corporation to nominate directors at an annual meeting pursuant
to Section 2.5(b) hereof or to propose business to be brought before an annual
or special meeting pursuant to clause (iii) of Section 2.5(a) hereof. To be
timely in the case of an annual meeting, a stockholder's notice must be received
at the principal executive offices of the Corporation not more than one hundred
eighty (180) days nor less than one hundred twenty (120) days before the first
anniversary of the preceding year's annual meeting. To be timely in the case of
a special meeting or in the event that the date of the annual meeting is changed
by more than thirty (30) days from such anniversary date, a
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stockholder's notice must be received at the principal executive offices of the
Corporation no later than the close of business on the tenth (10th) day
following the earlier of the day on which notice of the meeting date was mailed
or public disclosure of the meeting date was made. For purposes of this Section
2.5(c), "PUBLIC DISCLOSURE" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national news service
or in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934. Such stockholder's notice shall set forth (i) with respect
to each matter, if any, that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting and the reasons for conducting such business at the meeting, (ii) with
respect to each person, if any, whom the stockholder proposes to nominate for
election as a director, all information relating to such person (including such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director) that is required under the Securities Exchange Act of
1934, as amended, (iii) the name and address, as they appear on the
Corporation's records, of the stockholder proposing such business or nominating
such persons (as the case may be), and the name and address of the beneficial
owner, if any, on whose behalf the proposal or nomination is made, (iv) the
class and number of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder of record and by the beneficial
owner, if any, on whose behalf the proposal or nomination is made, and (v) any
material interest or relationship that such stockholder of record and/or the
beneficial owner, if any, on whose behalf the proposal or nomination is made may
respectively have in such business or with such nominee. At the request of the
board of directors, any person nominated for election as a director shall
furnish to the Secretary of the Corporation the information required to be set
forth in a stockholder's notice of nomination which pertains to the nominee.
(d) Notwithstanding anything in these bylaws to the contrary, no
business shall be conducted, and no person shall be nominated to serve as a
director, at an annual or special meeting of stockholders, except in accordance
with the procedures set forth in this Section 2.5. The chairman of the meeting
shall, if the facts warrant, determine that business was not properly brought
before the meeting, or that a nomination was not made, in accordance with the
procedures prescribed by these bylaws and, if he shall so determine, he shall so
declare to the meeting, and any such business not properly brought before the
meeting shall not be transacted and any defective nomination shall be
disregarded. A stockholder shall also comply with all applicable requirements of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section 2.5.
2.6 Voting List. At least ten (10) days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares of capital stock registered in the name of each
stockholder. For a period of ten (10) days prior to such meeting, such list
shall be kept on file at a place within the city where the meeting is to be
held, which place shall be specified in the notice of meeting or a duly executed
waiver of notice of such meeting or, if not so specified, at the place where the
meeting is to be held and shall be open to examination by any stockholder, for
any purpose germane to the meeting, during ordinary business hours. Such list
shall be produced at such meeting and kept at the meeting at all times during
such meeting and may be inspected by any stockholder who is present.
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2.7 Quorum. The holders of a majority of the outstanding shares of
capital stock entitled to vote on a matter, present in person or by proxy, shall
constitute a quorum at any meeting of stockholders, except as otherwise provided
by law, the Certificate of Incorporation, or these bylaws. If a quorum shall not
be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy
(or, if no stockholder entitled to vote is present, any officer of the
Corporation), may adjourn the meeting from time to time without notice other
than announcement at the meeting (unless the board of directors, after such
adjournment, fixes a new record date for the adjourned meeting), until a quorum
shall be present, in person or by proxy. At any adjourned meeting at which a
quorum shall be present, in person or by proxy, any business may be transacted
which may have been transacted at the original meeting had a quorum been
present; provided that, if the adjournment is for more than thirty (30) days or
if after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at the adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of at least a majority of the outstanding
shares of capital stock entitled to vote thereat who are present, in person or
by proxy, shall decide any question brought before such meeting, unless the
question is one on which, by express provision of law, the Certificate of
Incorporation, or these bylaws, a different vote is required, in which case such
express provision shall govern and control the decision of such question;
provided, however, that the vote of the holders of a plurality of the
outstanding shares of capital stock entitled to vote in the election of
directors who are present, in person or by proxy, shall be required to effect
elections of directors. The stockholders present at a duly constituted meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
2.9 Method of Voting; Proxies. Except as otherwise provided in the
Certificate of Incorporation or by law, each outstanding share of capital stock,
regardless of class, shall be entitled to one vote on each matter submitted to a
vote at a meeting of stockholders. Elections of directors need not be by written
ballot. At any meeting of stockholders, every stockholder having the right to
vote may vote either in person or by a proxy executed in writing by the
stockholder or by his duly authorized attorney-in-fact. Each such proxy shall be
filed with the Secretary of the Corporation before or at the time of the
meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.10 Record Date. For the purpose of determining stockholders entitled
(a) to notice of or to vote at any meeting of stockholders or any adjournment
thereof, (b) to receive payment of any dividend or other distribution or
allotment of any rights, or (c) 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, for any such determination of stockholders, such date in
any case to be not more than sixty (60) days and not less than ten (10) days
prior to such meeting nor more than (sixty) 60 days prior to any other action.
If no record data is fixed:
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(a) 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.
(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the board of
directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the board of directors may fix a new record date for the
adjourned meeting.
2.11 Conduct of Meeting. The Chairman of the Board, if such office has
been filled, and, if such office has not been filled or if the Chairman of the
Board is absent or otherwise unable to act, the Chief Executive Officer shall
preside at all meetings of stockholders. The Secretary shall keep the records of
each meeting of stockholders. In the absence or inability to act of any such
officer, such officer's duties shall be performed by the officer given the
authority to act for such absent or non-acting officer under these bylaws or by
resolution adopted by the board of directors, or if no officer has been given
such authority, by some person appointed at the meeting.
2.12 Inspectors. The board of directors may, in advance of any meeting
of stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. If any of the inspectors so appointed shall fail to appear
or act, the chairman of the meeting shall, or if inspectors shall not have been
appointed, the chairman of the meeting may, appoint one or more inspectors. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath to execute faithfully the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspectors
shall determine the number of shares of capital stock of the Corporation
outstanding and the voting power of each, the number of shares represented at
the meeting, the existence of a quorum, and the validity and effect of proxies
and shall receive votes, ballots, or consents, hear and determine all challenges
and questions arising in connection with the right to vote, count, and tabulate
all votes, ballots, or consents, determine the results, and do such acts as are
proper to conduct the election or vote with fairness to all stockholders. On
request of the chairman of the meeting, the inspectors shall make a report in
writing of any challenge, request, or matter determined by them and shall
execute a certificate of any fact found by them. No director or candidate for
the office of director shall act as an inspector of an election of directors.
Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and affairs of the Corporation shall be
managed by or under the direction of the board of directors.
3.2 Number; Qualification; Election; Term. The board of directors
shall consist of no less than one director (plus such number of directors as may
be elected from time to time pursuant to the terms of any series of preferred
stock that may be issued and outstanding from time to time). Subject to the
preceding sentence, the number of directors which shall constitute the whole
board of directors shall from time to time be fixed and determined by resolution
adopted by the board of directors. The directors of the Corporation (exclusive
of
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directors who are elected pursuant to the terms of, and serve as
representatives of the holders of, any series of preferred stock of the
Corporation) shall be referred to herein as "CLASSIFIED DIRECTORS" and shall be
divided into three classes, with the first class referred to herein as "CLASS
1," the second class as "CLASS 2," and the third class as "CLASS 3." If the
total number of Classified Directors equals a number divisible by three, then
the number of directors in each of Class 1, Class 2, and Class 3 shall be that
number of directors equal to the total number of directors divided by three. If,
however, the total number of Classified Directors equals a number that is not
divisible by three, each such class of directors shall consist of that number of
directors as nearly equal in number as possible to the total number of directors
divided by three, as determined by the board of directors in advance of each
respective election of directors by holders of shares of capital stock of the
Corporation then entitled to vote in such election. The term of office of the
initial Class 1 directors shall expire at the 2002 annual meeting of
stockholders, the term of office of the initial Class 2 directors shall expire
at the 2003 annual meeting of stockholders and the term of office of the initial
Class 3 directors shall expire at the 2004 annual meeting of stockholders, with
each director to hold office until his successor shall have been duly elected
and qualified. At each annual meeting of stockholders, commencing with the 2002
annual meeting, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election. Each director shall hold
office until his successor shall have been duly elected and qualified or until
such director's earlier resignation or removal.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock issued by the Corporation shall have the
right, voting separately by series or by class (excluding holders of common
stock), 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 terms of the Certificate of Incorporation
(including any amendment to the Certificate of Incorporation that designates a
series of preferred stock), and such directors so elected by the holders of
preferred stock shall not be divided into classes pursuant to this Section 3.2
unless expressly provided by the terms of the Certificate of Incorporation.
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Vacancies. Any or all Classified Directors may be removed for
cause at any annual or special meeting of stockholders, upon the affirmative
vote of the holders of a majority of the outstanding shares of each class of
capital stock then entitled to vote in person or by proxy at an election of such
Classified Directors, provided that notice of the intention to act upon such
matter shall have been given in the notice calling such meeting. Newly created
directorships resulting from any increase in the authorized number of directors
and any vacancies occurring in the board of directors caused by death,
resignation, retirement, disqualification, removal or other termination from
office of any directors may be filled by the vote of a majority of the directors
then in office, though less than a quorum, or by the affirmative vote, at a
special meeting of the stockholders called for the purpose of filling such
directorship, of the holders of a majority of the outstanding shares of capital
stock then entitled to vote in person or by proxy at such meeting. Each
successor director so chosen shall hold office until the next election of the
class for which such director shall have been chosen and until his respective
successor shall have been duly elected and qualified. Any newly created or
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eliminated directorships resulting from an increase or decrease in the
authorized number of directors shall be appointed or allocated by the board of
directors among the three classes of directors so as to maintain such classes as
nearly equal in number as possible.
3.5 Meetings of Directors. The directors may hold their meetings and
may have an office and keep the records of the Corporation, except as otherwise
provided by law, in 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 notice of such meeting or duly executed waiver of notice of
such meeting.
3.6 First Meeting. Each newly elected board of directors may hold its
first meeting for the purpose of organization and the transaction of business,
if a quorum is present, immediately after and at the same place as the annual
meeting of stockholders, and no notice of such meeting shall be necessary.
3.7 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.8 Regular Meetings. Regular meetings of the board of directors shall
be held at such times and places as shall be designated from time to time by
resolution of the board of directors. Notice of such regular meetings shall not
be required.
3.9 Special Meetings. Special meetings of the board of directors shall
be held whenever called by the Chairman of the Board and Chief Executive
Officer, or any director.
3.10 Notice. The Secretary shall give notice of each special meeting
to each director at least 24 hours before the meeting. Notice of any such
meeting need not be given to any director who, either before or after the
meeting, submits a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
The purpose of any special meeting shall be specified in the notice or waiver of
notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the board of directors,
a majority of the directors fixed in the manner provided in these bylaws shall
constitute a quorum for the transaction of business. If at any meeting of the
board of directors there is less than a quorum present, a majority of those
present or any director solely present may adjourn the meeting from time to time
without further notice. Unless the act of a greater number is required by law,
the Certificate of Incorporation, or these bylaws, the act of a majority of the
directors present at a meeting at which a quorum is in attendance shall be the
act of the board of directors. At any time that the Certificate of Incorporation
provides that directors elected by the holders of a class or series of stock
shall have more or less than one vote per director on any matter, every
reference in these bylaws to a majority or other proportion of directors shall
refer to a majority or other proportion of the votes of such directors.
3.12 Procedure. At meetings of the board of directors, business shall
be transacted in such order as from time to time the board of directors may
determine. The Chairman of the Board, if such office has been filled, and, if
such office has not been filled or if the Chairman of the Board is absent or
otherwise unable to act, the Chief Executive Officer shall preside at all
meetings of the board of directors. In the absence or inability to act of such
officers, a chairman shall be chosen by the board of directors from among the
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directors present. The Secretary of the Corporation shall act as the secretary
of each meeting of the board of directors unless the board of directors appoints
another person to act as secretary of the meeting. The board of directors shall
keep regular minutes of its proceedings which shall be placed in the minute book
of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who is
present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who voted in favor of such action.
3.14 Compensation. The board of directors shall have the authority to
fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may designate one or more
committees.
4.2 Number; Qualification; Term. Each committee shall consist of one
or more directors appointed by resolution adopted by a majority of the entire
board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until the earliest
of (i) the expiration of his term as director, (ii) his resignation as a
committee member or as a director, or (iii) his removal as a committee member or
as a director.
4.3 Authority. Each committee, to the extent expressly provided in the
resolution establishing such committee, shall have and may exercise all of the
powers and authority of the board of directors in the management of the business
and affairs of the Corporation except to the extent expressly restricted by law,
the Certificate of Incorporation, or these bylaws.
4.4 Committee Changes. The board of directors shall have the power at
any time to fill vacancies in, to change the membership of, and to discharge any
committee.
4.5 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each such alternate committee member is absent or disqualified, the
member or members of such committee present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in the
place of any such absent or disqualified member.
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4.6 Regular Meetings. Regular meetings of any committee may be held
without notice at such time and place as may be designated from time to time by
the committee and communicated to all members thereof.
4.7 Special Meetings. Special meetings of any committee may be held
whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two (2) days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a majority of
the number of members designated by the board of directors shall constitute a
quorum for the transaction of business. If a quorum is not present at a meeting
of any committee, a majority of the members present may adjourn the meeting from
time to time, without notice other than an announcement at the meeting, until a
quorum is present. The act of a majority of the members present at any meeting
at which a quorum is in attendance shall be the act of a committee, unless the
act of a greater number is required by law, the Certificate of Incorporation, or
these bylaws.
4.9 Minutes. Each committee shall cause minutes of its proceedings to
be prepared and shall report the same to the board of directors upon the request
of the board of directors. The minutes of the proceedings of each committee
shall be delivered to the Secretary of the Corporation for placement in the
minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the board
of directors, be allowed a fixed sum and expenses of attendance, if any, for
attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the Certificate of Incorporation, or
these bylaws, notice is required to be given to any committee member, director,
or stockholder and no provision is made as to how such notice shall be given,
personal notice shall not be required and any such notice may be given (a) in
writing, by mail, postage prepaid, addressed to such committee member, director,
or stockholder at his address as it appears on the books or (in the case of a
stockholder) the stock transfer records of the Corporation, or (b) by any other
method permitted by law (including but not limited to overnight courier service,
telegram, telex, or telefax). Any notice required or permitted to be given by
mail shall be deemed to be delivered and given at the time when the same is
deposited in the United States mail as aforesaid. Any notice required or
permitted to be given by overnight courier service shall be deemed to be
delivered and given at the time delivered to such service with all charges
prepaid and addressed as aforesaid. Any notice required or permitted to be given
by telegram, telex, or telefax shall be deemed to be delivered and given at the
time transmitted with all charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the Corporation by statute, the
Certificate of Incorporation, or these bylaws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be equivalent to the giving of such notice.
Attendance of a stockholder, director, or committee member at a meeting shall
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constitute a waiver of notice of such meeting, except where such person attends
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the Corporation
shall be a Chairman of the Board, a Chief Executive Officer, a President, a
Secretary, and such other officers as the board of directors may from time to
time elect or appoint, including one or more Vice Presidents (with each Vice
President to have such descriptive title, if any, as the board of directors
shall determine) and a Treasurer. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified, until his
death, or until he shall resign or shall have been removed in the manner
hereinafter provided. Any two or more offices may be held by the same person.
None of the officers need be a stockholder or a director of the Corporation or a
resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the board of
directors may be removed by the board of directors whenever in its judgment the
best interest of the Corporation will be served thereby, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed.
Election or appointment of an officer or agent shall not of itself create
contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the Corporation
(by death, resignation, removal, or otherwise) may be filled by the board of
directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate the power to determine the compensation
of any officer and agent (other than the officer to whom such power is
delegated) to the Chairman of the Board, the Chief Executive Officer or the
President.
6.6 Chairman of the Board. The Chairman of the Board shall be the
chief officer of the Board of Directors, shall preside at all meetings of the
..Board of Directors, and shall have such other authority and perform such other
duties as may be prescribed by the Board of Directors or these bylaws.
6.7 Chief Executive Officer. The Chief Executive Officer shall have
general and active management of the business of the Corporation, shall see that
all orders and resolutions of the Board of Directors are carried into effect,
shall, if there is no Chairman of the Board, or in the absence or disability of
the Chairman of the Board, preside at all meetings of the Board of Directors,
and shall have such other authority and perform such other duties as may be
prescribed by the Board of Directors or these bylaws.
6.8 President. The President shall, subject to the direction of the
Board of Directors, the Chairman of the Board, and the Chief Executive Officer,
exercise direct charge of and general supervision over the business affairs and
employees of the Corporation. He or she shall also have such other authority and
perform such other duties as may be prescribed from time to time by the Board of
Directors, the Chairman of the Board or these bylaws. The President shall, if
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there is no Chief Executive Officer, or in the absence or disability of the
Chief Executive Officer, be the Chief Executive Officer of the Corporation, and
perform the duties and exercise the powers of the Chief Executive Officer.
6.9 Vice Presidents. Each Vice President shall have such powers and
duties as may be assigned to him by the board of directors, the Chairman of the
Board, the Chief Executive Officer, or the President, and (in order of their
seniority as determined by the board of directors or, in the absence of such
determination, as determined by the length of time they have held the office of
Vice President) shall exercise the powers of the President during that officer's
absence or inability to act. As between the Corporation and third parties, any
action taken by a Vice President in the performance of the duties of the
President shall be conclusive evidence of the absence or inability to act of the
President at the time such action was taken.
6.10 Treasurer. The Treasurer shall have custody of the Corporation's
funds and securities, shall keep full and accurate account of receipts and
disbursements, shall deposit all monies and valuable effects in the name and to
the credit of the Corporation in such depository or depositories as may be
designated by the board of directors, and shall perform such other duties as may
be prescribed by the board of directors, the Chairman of the Board, the Chief
Executive Officer, or the President.
6.11 Assistant Treasurers. Each Assistant Treasurer shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the Chief Executive Officer, or the President. The
Assistant Treasurers (in the order of their seniority as determined by the board
of directors or, in the absence of such a determination, as determined by the
length of time they have held the office of Assistant Treasurer) shall exercise
the powers of the Treasurer during that officer's absence or inability to act.
6.12 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all meetings of the board of directors and
of the stockholders in books provided for that purpose, and he shall attend to
the giving and service of all notices. He may sign with the Chairman of the
Board, the Chief Executive Officer or the President, in the name of the
Corporation, all contracts of the Corporation and affix the seal, if any, of the
Corporation thereto. He may sign with the Chairman of the Board, the Chief
Executive Officer or the President all certificates for shares of stock of the
Corporation, and he shall have charge of the certificate books, transfer books,
and stock papers as the board of directors may direct, all of which shall at all
reasonable times be open to inspection by any director upon application at the
office of the Corporation during business hours. He shall in general perform all
duties incident to the office of the Secretary, subject to the control of the
board of directors, the Chairman of the Board and Chief Executive Officer, and
the President.
6.13 Assistant Secretaries. Each Assistant Secretary shall have such
powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, the Chief Executive Officer, or the President. The
Assistant Secretaries (in the order of their seniority as determined by the
board of directors or, in the absence of such a determination, as determined by
the length of time they have held the office of Assistant Secretary) shall
exercise the powers of the Secretary during that officer's absence or inability
to act.
6.14 Vice Chairman of the Board. The Vice Chairman of the Board shall
have such powers and duties as may be provided herein or assigned to him by the
board of directors or the Chairman of the Board.
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ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board, the
Chief Executive Officer or the President or a Vice President and also by the
Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any and all signatures on the certificate may be a facsimile and may
be sealed with the seal of the Corporation or a facsimile thereof. If any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, a certificate has ceased to be such officer,
transfer agent, or registrar before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue. The certificates
shall be consecutively numbered and shall be entered in the books of the
Corporation as they are issued and shall exhibit the holder's name and the
number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The Corporation may
direct a new certificate or certificates to be issued in place of a certificate
or certificates theretofore issued by the Corporation and alleged to have been
lost or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate or certificates representing shares to be lost or
destroyed. When authorizing such issue of a new certificate or certificates the
board of directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond with a surety or
sureties satisfactory to the Corporation in such sum as it may direct as
indemnity against any claim, or expense resulting from a claim, that may be made
against the Corporation with respect to the certificate or certificates alleged
to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, 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.
7.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and authority
to provide that certificates representing shares of stock bear such legends as
the board of directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
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ARTICLE EIGHT: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the Certificate of
Incorporation, dividends may be declared by the board of directors at any
regular or special meeting and may be paid in cash, in property, or in shares of
stock of the Corporation. Such declaration and payment shall be at the
discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, or to repair or maintain any property
of the Corporation, or for such other purpose as the board of directors shall
consider beneficial to the Corporation, and the board of directors may modify or
abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders and board of directors and shall keep at its registered office or
principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed by
the board of directors; provided, that if such fiscal year is not fixed by the
board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time to
time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the Chief
Executive Officer, the President, or the Secretary. Such resignation shall take
effect at the time specified therein or, if no time is specified therein,
immediately upon its receipt. Unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the Board, the
Chief Executive Officer or the President shall have the power and authority to
transfer, endorse for transfer, vote, consent, or take any other action with
respect to any securities of another issuer which may be held or owned by the
Corporation and to make, execute, and deliver any waiver, proxy, or consent with
respect to any such securities.
8.8 Telephone Meetings. Members of the board of directors and members
of a committee of the board of directors may participate in and hold a meeting
of such board of directors or committee by means of a conference telephone or
similar communications equipment by means of which persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting. Unless otherwise restricted by the
Certificate of Incorporation or by these bylaws, any action required or
permitted to be taken at a meeting
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of the board of directors, or of any committee of the board of directors may be
taken without a meeting if a consent or consents in writing, setting forth the
action so taken, shall be signed by all the directors or all the committee
members, as the case may be, entitled to vote with respect to the subject matter
thereof, and such consent shall have the same force and effect as a vote of such
directors or committee members, as the case may be, and may be stated as such in
any certificate or document filed with the Secretary of State of the State of
Delaware or in any certificate delivered to any person. Such consent or consents
shall be filed with the minutes of proceedings of the Board or committee, as the
case may be.
Any action required to be taken at any annual or special meeting of
stockholders of the Corporation, or any action which may be taken at any annual
or special meeting of stockholders, may be taken without a meeting, without
prior notice and without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. 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.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.12 Headings. The headings used in these bylaws have been inserted
for administrative convenience only and do not constitute matter to be construed
in interpretation.
8.13 References. Whenever herein the singular number is used, the same
shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. The board of directors may, upon the affirmative
vote of at least two-thirds of the Classified Directors then serving, make,
adopt, alter, amend, and repeal from time to time these bylaws and make from
time to time new bylaws of the Corporation (subject to the right of the
stockholders entitled to vote thereon to adopt, alter, amend, and repeal bylaws
made by the board of directors or to make new bylaws); provided, however, that
the stockholders of the Corporation may adopt, alter, amend, or repeal bylaws
made by the board of directors or make new bylaws solely upon the affirmative
vote of the holders of at least two-thirds of the outstanding shares of capital
stock then entitled to vote thereon.
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REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE TO FOLLOW
The undersigned Secretary of the Corporation hereby certifies that the
foregoing bylaws were adopted by unanimous consent of the directors of the
Corporation as of ______________, 2001.
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,
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SECRETARY
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