EXHIBIT 3.03
Bylaws
of
DIGITAL CERTIFICATES INTERNATIONAL, INC.
ARTICLE I
Stockholders
Section 1. Annual Meeting. An annual meeting of the stockholders of the
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corporation, for the election of the Directors to succeed those whose terms
expire and for the transaction of such other business as may properly come
before the meeting, shall be held at such place, on such date and at such time
as the Board of Directors shall each year fix.
Section 2. Special Meetings. Special meetings of the stockholders may be
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called by the President or by order of the Board of Directors, and shall be
called by the Secretary (or in the case of the death, absence, incapacity or
refusal of the Secretary, by any other officer) upon written application by one
or more stockholders who together hold of record at least 10 percent in interest
of the capital stock entitled to vote at such meeting.
Section 3. Place of Meetings. All meetings of stockholders shall be held
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at the principal office of the corporation unless a different place is fixed by
the person or persons calling the meeting and stated in the notice of the
meeting.
Section 4. Notices of Meetings and Adjourned Meetings. A written notice of
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each annual or special meeting of the stockholders stating the place, date, and
hour thereof, shall be given by the Secretary (or the person or persons calling
the meeting), not less than 10 nor more than 60 days before the date of the
meeting, to each stockholder entitled to vote thereat, by leaving such notice
with him or her or at his or her residence or usual place of business, or by
depositing it postage prepaid in the United States mail, directed to each
stockholder at his or her address as it appears on the records of the
corporation. Notices of all meetings of stockholders shall state the purpose or
purposes for which the meeting is called. An affidavit of the
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Secretary, Assistant Secretary, or transfer agent of the corporation that the
notice has been given shall, in the absence of fraud, be primary facie evidence
of the facts stated therein. No notice need be given to any person with whom
communication is unlawful or to any person who has waived such notice either (a)
in writing (which writing need not specify the business to be transacted at, or
the purpose of, the meeting) signed by such person before or after the time of
the meeting or (b) by attending the meeting except for the express purpose of
objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. When a meeting is
adjourned to another time and place, notice need not be given of the adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken except that, if the adjournment is for more than 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 in the manner provided in this
Section 4.
Section 5. Quorum. At any meeting of the stockholders, a quorum for the
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transaction of business shall consist of one or more individuals appearing in
person or represented by proxy and owning or representing a majority of the
shares of the corporation then outstanding and entitled to vote thereat, unless
or except to the extent that the presence of a larger number may be required by
law (including as required from time to time by the Delaware General Corporation
Law or the Certificate of Incorporation of the corporation). Where a separate
vote by a class or classes is required, a majority of the shares of such class
or classes then oustanding and entitled to vote present in person or by proxy
shall constitute a quorum entitled to take action with respect to that vote on
that matter. If a quorum shall fail to attend any meeting, the chairman of the
meeting or the holders of a majority of the shares of stock entitled to vote
thereat who are present, in person or by proxy, may adjourn the meeting to
another place, date, or time.
Section 6. Organization. Such person as the Board of Directors may have
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designated or, in the absence of such a person, the President of the corporation
or, in his or her absence, such person as may be chosen by the holders of a
majority of the shares entitled to vote thereat who are present, in person or by
proxy,
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shall call to order any meeting of the stockholders and act as chairman of the
meeting. In the absence of the Secretary of the corporation, the secretary of
the meeting shall be such person as the chairman appoints.
Section 7. Conduct of Business. The chairman of any meeting of
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stockholders shall determine the order of business and the procedure at the
meeting, including such regulation of the manner of voting and the conduct of
discussion as seem to him or her in order.
Section 8. Voting. Unless otherwise provided in the Certificate of
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Incorporation and subject to the provisions of Section 6 of Article IV hereof,
each stockholder shall have one vote for each share of stock entitled to vote
held by him or her of record according to the records of the corporation.
Persons holding stock in a fiduciary capacity shall be entitled to vote the
shares so held. Persons whose stock is pledged shall be entitled to vote unless
the pledgor in a transfer on the books of the corporation has expressly
empowered the pledgee to vote the pledged shares, in which case only the pledgee
or his or her proxy shall be entitled to vote. If shares stand of record in the
names of two or more persons or if two or more persons have the same fiduciary
relationship respecting the shares then, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order
appointing them or creating the relationship wherein it is so provided to the
contrary: (a) if only one votes, his or her act binds all; (b) if more than one
vote, the act of the majority so voting binds all; and (c) if more than one vote
and the vote is evenly split, the effect shall be as provided by law.
Section 9. Proxies. Each stockholder entitled to vote at a meeting of
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stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or any group of persons to act
for him or her by proxy, but no such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period.
Section 10. Action at Meeting. When a quorum is present at any meeting,
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action of the stockholders on any matter properly
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brought before such meeting, other than the election of directors, shall
require, and may be effected by, the affirmative vote of the holders of a
majority in interest of the stock present or represented by proxy and entitled
to vote on the subject matter, except where a different vote is expressly
required by law, the Certificate of Incorporation or these By-laws, in which
case such express provision shall govern and control. The election of directors
shall be determined by a plurality of votes cast. If the Certificate of
Incorporation so provides, no ballot shall be required for the election of
directors unless requested be a stockholder present or represented at the
meeting and entitled to vote in the election.
Section 11. Stockholder Lists. The officer who has charge of the stock
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ledger of the corporation shall prepare and make available, at least 10 days
before every meeting of stockholders, a complete list of stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder, for
any purpose germane to the meeting, during ordinary business hours, for a period
of at least 10 days prior to the meeting, either at a place of inspection within
the city where the meeting is to be held (which place of inspection shall be
specified in the notice of the meeting) or, if not so specified, at the place
where the meeting is to be held. Such list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present. The stock ledger shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger,
the list required by this section or the books of the corporation, or to vote in
person or by proxy at any meeting of stockholders.
Section 12. Action by Written Consent. Any action required by law to be
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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 such
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,
and dated and signed by the holders of outstanding stock having not less than
the minimum number of votes that would be
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necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted, are delivered to the
corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceedings of stockholders are recorded. Delivery made to the
corporation's registered office shall be made by hand or by certified or
registered mail, return receipt requested. Every written consent shall bear the
date of signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to therein
unless, within 60 days of the date the earliest dated consent is delivered to
the corporation, a written consent or consents signed by a sufficient number of
holders to take action are delivered to the corporation in the manner described
in this Section. Prompt notice of the taking of corporate action without a
meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Such consents shall be filed
with the records of the proceedings of the stockholders.
ARTICLE II
Directors
Section 1. Powers. The business and affairs of the corporation shall be
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managed by or under the direction of the Board of Directors, which may exercise
all such powers of the corporation and do all such lawful acts and things as are
not by law or these By-laws directed or required to be exercised or done by the
stockholders.
Section 2. Number of Directors. The Board of Directors shall consist of no
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less than five (5) members nor more than seven (7) members, the number thereof
to be fixed from time to time by resolution of the Board of Directors. Any
amendment of these By-laws changing the authorized number of directors may be
adopted only by the affirmate vote of the stockholders holding a majority of the
outstanding capital stock of the Company entitled to vote.
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Section 3. Election and Tenure. Each Director shall be elected by
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plurality vote of the stockholders at the annual meeting or as provided in
Section 5 of this Article II. Each Director shall serve until his or her
successor is elected and qualified, or until his or her earlier resignation or
removal.
Section 4. Qualification. No Director need be a stockholder.
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Section 5. Removal. Any Director or the entire Board of Directors may be
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removed with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of the Directors except as otherwise provided by
law.
Section 6. Resignation. Any Director of the corporation may resign at any
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time by giving written notice to the Board of Directors, to the Chairman of the
Board, if any, to the President, or to the Secretary, and any member of a
committee may resign therefrom at any time by giving notice as aforesaid or to
the chairman or secretary of such committee. Any such resignation shall take
effect at the time specified therein, or, if the time be not specified, upon
receipt thereof; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 7. Vacancies and Newly Created Directorships. Vacancies and newly
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created directorships resulting from any increase in the authorized number of
Directors may be filled (a) by the stockholders at any meeting or by written
consent, (b) by a majority of the Directors then in office, although less than a
quorum, or (c) by a sole remaining Director. Whenever the holders of any class
or classes of stock or series thereof are entitled to elect one or more
Directors by the Certificate of Incorporation, vacancies and newly created
directorships of such class or classes or series may be filled by a majority of
the Directors elected by such class, classes or series then in office or by the
sole remaining director so elected. When one or more Directors shall resign
from the Board, effective at a future date, a majority of Directors who are
entitled to act on the filling of such vacancy or vacancies and who are then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies by vote to take effect when such resignation or
resignations shall become effective.
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Section 8. Annual Meeting. The first meeting of each newly elected board
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may be held without notice immediately after an annual meeting of stockholders
(or a special meeting of stockholders held in lieu of an annual meeting) at the
same place as that at which such meeting of stockholders was held; or such first
meeting may be held at such place and time as shall be fixed by the consent in
writing of all the Directors, or may be called in the manner hereinafter
provided with respect to the call of special meetings.
Section 9. Regular Meetings. Regular meetings of the Directors may be held
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at such times and places as shall from time to time be fixed by resolution of
the Board, and no notice need be given of regular meetings held at times and
places so fixed, PROVIDED, HOWEVER, that any resolution relating to the holding
of regular meetings shall remain in force only until the next annual meeting of
stockholders and that, if at any meeting of Directors at which a resolution is
adopted fixing the times or place or places for any regular meetings any
Director is absent, no meeting shall be held pursuant to such resolution without
notice to or waiver by such absent Director pursuant to Section 11 of this
Article II.
Section 10. Special Meetings. Special meetings of the Directors may be
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called by the Chairman of the Board, if any, the President, or by at least one-
third of the Directors then in office (rounded up to the nearest whole number),
and shall be held at the place and on the date and hour designated in the call
thereof.
Section 11. Notices. Notices of any special meeting of the Directors shall
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be given to each Director by the Secretary or an Assistant Secretary (a) by
mailing to him or her, postage prepaid, and addressed to him or her at his or
her address as registered on the books of the corporation, or if not so
registered at his or her last known home or business address, a written notice
of such meeting at least 4 days before the meeting, (b) by delivering such
notice by hand or by telegram, telecopy or telex to him or her at least 48 hours
before the meeting, addressed to him or her at such address, or (c) by giving
such notice in person or by telephone at least 48 hours in advance of the
meeting. In the absence of all
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such officers, such notice may be given by the officer or one of the Directors
calling the meeting. Notice need not be given to any Director who has waived
notice (a) in writing executed by him or her before or after the meeting and
filed with the records of the meeting, or (b) by attending the meeting except
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. A notice or waiver of notice of a meeting of the Directors need not
specify the business to be transacted at or the purpose of the meeting.
Section 12. Quorum. At any meeting of the Directors, a majority of the
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authorized number of Directors shall constitute a quorum for the transaction of
business. If a quorum shall not be present at any meeting of the Board of
Directors, a majority of those present (or, if not more than two Directors are
present, any Director present) may adjourn the meeting from time to time to
another place, date or time, without notice other than announcement at the
meeting prior to adjournment, until a quorum shall be present.
Section 13. Participation in Meetings by Conference Telephone. One or
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more members of the Board of Directors, or any committee thereof, may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 13 shall constitute presence in person at such meeting.
Section 14. Conduct of Business; Action by Written. At any meeting of
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the Board of Directors at which a quorum is present, business shall be
transacted in such order and manner as the Board may from time to time
determine, and all matters shall be determined by the vote of a majority of the
Directors present, except as otherwise provided in these By-laws or required by
law. Action may be taken by the Board of Directors, or any committee thereof,
without a meeting if all members of the Board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
records of proceedings of the Board or committee.
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Section 15. Place of Meetings. The Board of Directors may hold its
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meetings, and have an office or offices, within or without the State of
Delaware.
Section 16. Compensation. The Board of Directors shall have the authority
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to fix stated salaries for Directors for their service in such capacity and to
provide for payment of a fixed sum and expenses of attendance, if any, for
attendance at each regular or special meeting of the Board. The Board shall
also have the authority to provide for payment of a fixed sum and expenses of
attendance, if any, payable to members of committees for attending committee
meetings. Nothing herein contained shall preclude any Director from serving the
corporation in any other capacity and receiving compensation for such services.
Section 17. Committees. The Board of Directors, by resolution passed by a
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majority of the number of Directors required at the time to constitute a full
Board as fixed in or determined pursuant to these By-laws as then in effect, may
from time to time designate one or more committees, each committee to consist of
one or more of the Directors of the corporation. The Board may designate one or
more Directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
she 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. Any such committee, to the extent provided in the
resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to be
affixed to all papers which may require it; but no such committee shall have
such power or authority in reference to amending the Certificate of
Incorporation (except that a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board of Directors as provided in Subsection (a) of Section 151 of the
Delaware General Corporation Law, fix the designations and any preferences or
rights of such shares or fix the number of shares in a series of
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stock or authorize the increase or decrease in the shares of any series),
adopting an agreement of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property or assets, recommending to the stockholders a dissolution
of the corporation or a revocation of a dissolution, or amending the By-laws of
the corporation. Such a committee may, to the extent expressly provided in the
resolution of the Board of Directors, have the power or authority to declare a
dividend or to authorize the issuance of stock.
(b) At any meeting of any committee, a majority of the whole committee
shall constitute a quorum and, except as otherwise provided by these By-laws or
required by law, the affirmative vote of at least a majority of the members
present at a meeting at which there is a quorum shall be the act of the
committee.
(c) Each committee, except as otherwise provided by resolution of the Board
of Directors, shall fix the time and place of its meetings within or without the
State of Delaware, shall adopt its own rules and procedures, and shall keep a
record of its acts and proceedings and report the same from time to time to the
Board of Directors.
ARTICLE III
Officers
Section 1. Officers and Their Election. The officers of the corporation
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shall be a Chief Executive Officer, a President, a Secretary, a Chief Financial
Officer and such Vice Presidents, Assistant Secretaries, Assistant Chief
Financial Officers and other officers as the Board of Directors may from time to
time determine and elect or appoint. The Board of Directors may appoint one of
its members to the office of Chairman of the Board and another of its members to
the office of Vice-Chairman of the Board and from time to time define the powers
and duties of these offices notwithstanding any other provisions of these By-
laws. All officers shall be elected by the Board of Directors and shall serve
at the will of the Board of Directors. Any officer may, but need not, be a
Director. Two or more offices may be held by the same person.
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Section 2. Term of Office. The Chief Executive Officer, the President, the
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Chief Financial Officer and the Secretary shall, hold office until his or her
successor is elected and qualified or until his or her earlier resignation or
removal.
Section 3. Vacancies. Any vacancy at any time existing in any office may
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be filled by the Board of Directors.
Section 4. Chairman of the Board. The Board of Directors may, in its
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discretion, elect a Chairman of the Board from among its members. He or she may
be the Chief Executive Officer of the corporation if so designated by the Board,
and he or she shall preside at all meetings of the Board of Directors at which
he or she is present and shall exercise and perform such other powers and duties
as may from time to time be assigned to him or her by the Board of Directors or
prescribed by the Bylaws.
Section 5. Chief Executive Officer. The Board of Directors may elect a
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Chief Executive Officer of the corporation who may also be the Chairman of the
Board or President of the corporation or both. It shall be his or her duty and
he or she shall have the power to see that all orders and resolutions of the
Board of Directors are carried into effect. He or she shall from time to time
report to the Board of Directors all matters within his or her knowledge which
the interests of the corporation may require to be brought to its notice. The
Chief Executive Officer, when present, shall preside at all meetings of the
stockholders and, unless there shall be a Chairman of the Board, of the Board of
Directors, unless otherwise provided by the Board of Directors.
Section 6. President. If there is no Chief Executive Officer, the
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President shall be the chief executive officer of the corporation except as the
Board of Directors may otherwise provide. The President shall perform such
duties and have such powers additional to the foregoing as the Board of
Directors shall designate.
Section 7. Vice Presidents. In the absence or disability of the President,
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his or her powers and duties shall be performed by the vice president, if only
one, or, if more than one, by the one designated for the purpose by the Board of
Directors. Each vice
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president shall perform such duties and have such powers additional to the
foregoing as the Board of Directors shall designate.
Section 8. Chief Financial Officer. The Chief Financial Officer shall be
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the treasurer of the corporation and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the corporation in such depositories as shall be designated by the Board of
Directors or in the absence of such designation in such depositories as he or
she shall from time to time deem proper. The Chief Financial Officer (or any
Assistant Chief Financial Officer) shall sign all stock certificates as
treasurer of the corporation. He or she shall disburse the funds of the
corporation as shall be ordered by the Board of Directors, taking proper
vouchers for such disbursements. He or she shall promptly render to the Chief
Executive Officer and to the Board of Directors such statements of his or her
transactions and accounts as the Chief Executive Officer and Board of Directors
respectively may from time to time require. The Chief Financial Officer shall
perform such duties and have such powers additional to the foregoing as the
Board of Directors may designate.
Section 9. Assistant Chief Financial Officers. In the absence or
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disability of the Chief Financial Officer, his or her powers and duties shall be
performed by the Assistant Chief Financial Officer, if only one, or if more than
one, by the one designated for the purpose by the Board of Directors. Each
Assistant Chief Financial Officer shall perform such duties and have such powers
additional to the foregoing as the Board of Directors shall designate.
Section 10. Secretary. The Secretary shall issue notices of all meetings
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of stockholders, of the Board of Directors and of committees thereof where
notices of such meetings are required by law or these By-laws. He or she shall
record the proceedings of the meetings of the stockholders and of the Board of
Directors and shall be responsible for the custody thereof in a book to be kept
for that purpose. He or she shall also record the proceedings of the committees
of the Board of Directors unless such committees appoint their own respective
secretaries. Unless the Board of
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Directors shall appoint a transfer agent and/or registrar, the Secretary shall
be charged with the duty of keeping, or causing to be kept, accurate records of
all stock outstanding, stock certificates issued and stock transfers. He or she
shall sign such instruments as require his or her signature. The Secretary shall
have custody of the corporate seal and shall affix and attest such seal on all
documents whose execution under seal is duly authorized. In his or her absence
at any meeting, an Assistant Secretary or the Secretary pro tempore shall
perform his or her duties thereat. He or she shall perform such duties and have
such powers additional to the foregoing as the Board of Directors shall
designate.
Section 11. Assistant Secretaries. In the absence or disability of the
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Secretary, his or her powers and duties shall be performed by the Assistant
Secretary, if only one, or, if more than one, by the one designated for the
purpose by the Board of Directors. Each Assistant Secretary shall perform such
duties and have such powers additional to the foregoing as the Board of
Directors shall designate.
Section 12. Salaries. The salaries and other compensation of officers,
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agents and employees shall be fixed from time to time by or under authority from
the Board of Directors. No officer shall be prevented from receiving a salary
or other compensation by reason of the fact that he or she is also a Director of
the corporation.
Section 13. Removal. The Board of Directors may remove any officer, either
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with or without cause, at any time.
Section 14. Bond. The corporation may secure the fidelity of any or all of
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its officers or agents by bond or otherwise.
Section 15. Resignations. Any officer, agent or employee of the
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corporation may resign at any time by giving written notice to the Board of
Directors, to the Chairman of the Board, if any, to the Chief Executive Officer
or to the Secretary of the corporation. Any such resignation shall take effect
at the time specified therein, or, if the time be not specified, upon receipt
thereof; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
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ARTICLE IV
Capital Stock
Section 1. Stock Certificates; Uncertificated Shares. The shares of
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capital stock of the corporation shall be represented by certificates, provided
that the Board of Directors may provide by resolution or resolutions that some
or all of any or all classes or series of its stock may be uncertificated
shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the corporation (or the
transfer agent or registrar, as the case may be). Notwithstanding the adoption
of such a resolution, every holder of stock represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a
certificate signed by, or in the name of, the corporation by the Chairman or
Vice-Chairman of the Board of Directors or the President or a Vice President,
and by the Chief Financial Officer (in his or her capacity as treasurer) or an
Assistant Chief Financial Officer (in his or her capacity as assistant
treasurer), or the Secretary or an Assistant Secretary, certifying the number of
shares owned by him or her in the corporation. Any or all of the signatures on
the certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before the certificate is issued, such certificate may nevertheless be issued by
the corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 2. Classes of Stock. If the corporation shall be authorized to
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issue more than one class of stock or more than one series of and class, the
face or back of each certificate issued by the corporation to represent such
class or series shall either (a) set forth in full or summarize the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications,
limitations or restrictions thereof, or (b) contain a statement that the
corporation will furnish a statement of the same without charge to each
stockholder who so requests. Within a reasonable time after the issuance or
transfer
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of uncertificated shares, the corporation shall send to the registered holder
thereof such written notice as may be required by law as to the information
required by law to be set forth or stated on stock certificates.
Section 3. Transfer of Stock. Shares of stock shall be transferable only
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upon the books of the corporation pursuant to applicable law and such rules and
regulations as the Board of Directors shall from time to time prescribe. The
Board of Directors may at any time or from time to time appoint a transfer agent
or agents or a registrar or registrars for the transfer or registration of
shares of stock. Except where a certificate is issued in accordance with
Section 5 of Article IV of these By-laws, one or more outstanding certificates
representing in the aggregate the number of shares involved shall be surrendered
for cancellation before a new certificate is issued representing such shares.
Section 4. Holders of Record. Prior to due presentment for registration of
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transfer the corporation may treat the holder of record of a share of its stock
as the complete owner thereof exclusively entitled to vote, to receive
notifications and otherwise entitled to all the rights and powers of a complete
owner thereof, notwithstanding notice to the contrary.
Section 5. Stock Certificates. The Board of Directors may direct that a
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new stock certificate or certificates, or uncertificated shares, be issued in
place of any certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen, or destroyed upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate or certificates,
or uncertificated shares, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates or his or her legal
representative, to give the corporation a bond sufficient to indemnify it
against any claim that may be made against the corporation on account of the
alleged loss, theft, or destruction, of such certificates or the issuance of
such new certificate or certificates, or uncertificated shares.
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Section 6. Record Date. (a) In order that the corporation may determine
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the stockholders entitled to notice of or to vote at any meeting of
stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action
other than stockholder action by written consent, the Board of Directors may fix
a record date, which record date shall not precede the date on which the
resolution fixing the record date is adopted and which record date shall not be
more than 60 nor less than 10 days before the date of any meeting of
stockholders, nor more than 60 days prior to the time for such other action as
hereinbefore described; provided, however, that if no record date is fixed by
the Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held, and, for determining stockholders entitled to receive
payment of and dividend or other distribution or allotment of rights or to
exercise any rights of change, conversion or exchange of stock or for any other
purpose, the record date shall be at the close of business on the day on which
the Board of Directors adopts a 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.
(b) 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 shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than 10 days after the date upon which the
resolution fixing the record date is adopted. 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
10 days after the date on which such a request is received, adopt a resolution
fixing the record date. If no record
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date has been fixed by the Board of Directors and no prior action by the Board
of Directors is required by the Delaware General Corporation Law, the record
date 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 in the
manner prescribed by Article I, Section 12 hereof. If no record date has been
fixed by the Board of Directors and prior action by the Board of Directors is
required by the Delaware General Corporation Law with respect to the proposed
action by written consent of stockholders, the record date for determining
stockholders entitled to consent to corporate action in writing shall be at the
close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
ARTICLE V
Miscellaneous Provisions
Section 1. Interested Directors and Officers. (a) No contract or
---------- ---------------------------------
transaction between the corporation and one or more of its Directors or
officers, or between the corporation and any other corporation, partnership,
association, or other organization in which one or more of its Directors or
officers are Directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director or officer is
present at or participates in the meeting of the Board or committee thereof
which authorizes the contract or transaction, or solely because his or her or
their votes are counted for such purpose, if:
(i) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative vote of a majority
of the disinterested Directors, even though the number of disinterested
Directors is less than a quorum; or
(ii) the material facts as to his or her relationship or interest and
as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and
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the contract or transaction is specifically approved in good faith by vote
of the shareholders; or
(iii) the contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of Directors,
a committee thereof, or the shareholders.
(b) Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
Section 2. Indemnification.
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(a) Right to Indemnification. The corporation shall indemnify and hold
-------------------------
harmless each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a Director or an officer 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 or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
to the fullest extent authorized by law, as the same exists or may hereafter be
amended (but, in the case of any such amendment, only to the extent that such
amendment permits the corporation to provide broader indemnification rights than
such law permitted the corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith; provided,
however, that, except as provided in Subsection (c) of this Section with respect
to proceedings to enforce rights to indemnification, the corporation shall
indemnify any such indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if such proceeding (or
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part thereof) was authorized by the Board of Directors of the corporation; and
provided further that as to any matter disposed of by a compromise payment by
such person, pursuant to a consent decree or otherwise, no indemnification
either for said payment or for any other expenses shall be provided unless such
compromise and indemnification therefor shall be appropriated:
(i) by a majority vote of a quorum consisting of disinterested
Directors;
(ii) if such a quorum cannot be obtained, then by a majority vote of
a committee of the Board of Directors consisting of all the disinterested
Directors;
(iii) if there are not two or more disinterested Directors in office,
then by a majority of the Directors then in office, provided they have
obtained a written finding by special independent legal counsel appointed by
a majority of the Directors to the effect that, based upon a reasonable
investigation of the relevant facts as described in such opinion, the person
to be indemnified appears to have acted in good faith in the reasonable
belief that his or her action was in the best interests of the corporation
(or, to the extent that such matter relates to service with respect to an
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan);
(iv) by the holders of a majority of the shares of stock entitled to
vote for the election of Directors, which majority may include interested
Directors and officers; or
(v) by a court of competent jurisdiction.
An "interested" Director or officer is one against whom in such capacity the
proceeding in question or other proceeding on the same or similar grounds is
then pending. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
---------------
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably believed to be in
or not opposed to the best interests of the corporation, and, with respect to
any criminal action or
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proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
(b) Right to Advancement of Expenses. The right to indemnification
----------------------------------
conferred in Subsection (a) of this Section shall include the right to be paid
by the corporation the expenses incurred in defending any such proceeding in
advance of its final disposition (hereinafter an "advancement of expenses");
provided, however, that, if the Delaware General Corporation Law requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section or otherwise, which undertaking may be accepted
without reference to the financial ability of such person to make repayment.
(c) Right of Indemnitee to Bring Suit. If a claim under Subsection (a) or
---------------------------------
(b) of this Section is not paid in full by the corporation within 60 days after
a written claim has been received by the corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be 20 days, the indemnitee may at any time there after bring suit against the
corporation to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit brought by the corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting or
defending such suit. In (i) any suit brought by the indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by the indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that,
and (ii) any suit by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking the corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth in the
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Delaware General Corporation Law. Neither the failure of the corporation
(including its Board of Directors, independent legal counsel, or its
stockholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
corporation (including its Board of Directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or by the corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Section or otherwise shall be on the corporation.
(d) Non-exclusivity of Rights. The rights to indemnification and to the
-------------------------
advancement of expenses conferred in this Section shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute,
certificate of incorporation, by-law, agreement, vote of disinterested Directors
or otherwise. The corporation's indemnification under this Section 2 of any
person who is or was a Director or officer 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, shall be reduced by any amounts such person receives as
indemnification (i) under any policy of insurance purchased and maintained on
his or her behalf by the corporation, (ii) from such other corporation,
partnership, joint venture, trust or other enterprise, or (iii) under any other
applicable indemnification provision.
(e) Joint Representation. If both the corporation and any person to be
--------------------
indemnified are parties to an action, suit or proceeding (other than an action
or suit by or in the right of the corporation to procure a judgment in its
favor), counsel representing the corporation therein may also represent such
indemnified person (unless such dual representation would involve
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such counsel in a conflict of interest in violation of applicable principles of
professional ethics), and the corporation shall pay all fees and expenses of
such counsel incurred during the period of dual representation other than those,
if any, as would not have been incurred if counsel were representing only the
corporation; and any allocation made in good faith by such counsel of fees and
disbursements payable under this paragraph by the corporation versus fees and
disbursements payable by any such indemnified person shall be final and binding
upon the corporation and such indemnified person.
(f) Indemnification of Employees and Agents of the Corporation. Except to
----------------------------------------------------------
the extent that rights to indemnification and advancement of expenses of
employees or agents of the corporation may be required by any statute, the
Certificate of Incorporation, this Section or any other by-law, agreement, vote
of disinterested Directors or otherwise, the corporation may, to the extent
authorized from time to time by the Board of Directors, grant rights to
indemnification and to the advancement of expenses to any employee or agent of
the corporation to the fullest extent of the provisions of this Section with
respect to the indemnification and advancement of expenses of Directors and
officers of the corporation.
(g) Insurance. The corporation may maintain insurance, at its expense, to
---------
protect itself and any Director, officer, employee or agent of the corporation
or another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the corporation would
have the power to indemnify such person against such expense, liability or loss
under the Delaware General Corporation Law (as currently in effect or hereafter
amended), the corporation's Certificate of Incorporation or these By-laws.
(h) Nature of Indemnification Right; Modification of Repeal of
----------------------------------------------------------
Indemnification. Each person who is or becomes a Director or officer as
- ---------------
described in subsection (a) of this Section 2 shall be deemed to have served or
to have continued to serve in such capacity in reliance upon the indemnity
provided for in this Section 2. All rights to indemnification (and the
advancement of expenses) under this Section 2 shall be deemed to be provided by
a contract between the corporation and the person who serves as a
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Director or officer of the corporation at any time while these By-laws and other
relevant provisions of the Delaware General Corporation Law and other applicable
law, if any, are in effect. Such rights shall continue as to an indemnitee who
has ceased to be a Director, officer, employee or agent and shall inure to the
benefit of the indemnitee's heirs, executors and administrators. Any
modification or repeal of this Section 2 shall not adversely affect any right or
protection existing under this Section 2 at the time of such modification or
repeal.
Section 3. Stock in Other Corporations. Subject to any limitations that
---------- ---------------------------
may be imposed by the Board of Directors, the President or any person or persons
authorized by the Board of Directors may, in the name and on behalf of the
corporation, (a) call meetings of the holders of stock or other securities of
any corporation or other organization, stock or other securities of which are
held by this corporation, (b) act, or appoint any other person or persons (with
or without powers of substitution) to act in the name and on behalf of the
corporation, or (c) express consent or dissent, as a holder of such securities,
to corporate or other action by such other corporation or organization.
Section 4. Checks, Notes, Drafts and Other Instruments. Checks, notes,
---------- -------------------------------------------
drafts and other instruments for the payment of money drawn or endorsed in the
name of the corporation may be signed by any officer or officers or person or
persons authorized by the Board of Directors to sign the same. No officer or
person shall sign any such instrument as aforesaid unless authorized by the
Board of Directors to do so.
Section 5. Corporate Seal. The seal of the corporation shall be circular
---------- --------------
in form, bearing the name of the corporation, the word "Delaware", and the year
of incorporation, and the same may be used by causing it or a facsimile thereof
to be impressed or affixed or in any other manner reproduced.
Section 6. Books and Records. The books, accounts and records of the
---------- -----------------
corporation, except as may be otherwise required by law, may be kept outside of
the State of Delaware, at such place or places as the Board of Directors may
from time to time appoint. Except as may otherwise be provided by law, the
Board of
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Directors shall determine whether and to what extent the books, accounts,
records and documents of the corporation, or any of them, shall be open to the
inspection of the stockholders.
Section 7. Severability. If any term or provision of the By-laws, or the
---------- ------------
application thereof to any person or circumstances or period of time, shall to
any extent be invalid or unenforceable, the remainder of the By-laws shall be
valid and enforced to the fullest extent permitted by law.
Section 8. Interpretations. Words importing persons include firms,
---------- ---------------
associations and corporations, all words importing the singular number include
the plural number and vice versa, and all words importing the masculine gender
include the feminine gender.
Section 9. Amendments. These By-laws may at any time and from time to time
---------- ----------
be amended or repealed by the stockholders or, if such power is conferred by the
Certificate of Incorporation, by the Board of Directors, except that any By-law
added or amended by the stockholders may be altered or repealed only by the
stockholders if such By-law expressly so provides.
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Page 25
CERTIFICATION
I, the undersigned, do hereby certify that:
(1) I am the duly elected and acting Secretary of Digital Certificates
International, Inc., a Delaware corporation; and
(2) The foregoing Bylaws, comprising twenty-three (23) pages, including
this Certification, constitute the Bylaws of said corporation as duly adopted by
the Board of Directors of this corporation on April 12, 1995.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal
of said corporation this 12th day of April, 1995.
/s/ Timothy Tomlinson
-----------------------------------
Timothy Tomlinson, Secretary