Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
DYNTEK, INC.
(A Delaware Corporation)
ARTICLE I.
Offices
SECTION 1. Principal Office. The principal office of the Corporation shall
be located in Irvine, California.
SECTION 2. Registered Offices and Agent. The registered office of the
Corporation in the State of Delaware is 15 North Street, Dover, Delaware 19901.
The registered agent shall be National Corporate Research, Ltd.
SECTION 3. Other Offices. The Corporation may also have an office or
offices other than said principal office at such place or places, either within
or without the State of Delaware, as the Board of Directors shall from time to
time determine or the business of the Corporation may require.
SECTION 4. Certain Definitions. Except where otherwise explicitly provided,
all references herein to the "Certificate of Incorporation" shall mean the
certificate of incorporation of the Corporation as from time to time amended or
restated and in effect including any certificates of designation filed under
Section 151(g) (or any successor provision) of the General Corporation Law of
the State of Delaware, as amended and in effect from time to time (the "DGCL"),
starting with the Amended and Restated Certificate of Incorporation dated
December 27, 2001 in effect on the date these Bylaws become effective. In the
event of any amendment of these Bylaws that does not involve a complete
restatement thereof, any reference herein to "the Bylaws" or "these Bylaws" or
"herein" or "hereof" or a like reference shall refer to these Bylaws as so
amended. Defined terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Certificate of Incorporation.
ARTICLE II.
Meetings of Stockholders
SECTION 1. Place of Meetings. All meetings of the stockholders for the
election of directors or for any other purpose shall be held at such place as
may be fixed from time to time by the Board of Directors, or at such other
place, either within or without the state of Delaware, as shall be designated
from time to time by the Board of Directors.
SECTION 2. Annual Meeting. The annual meeting of the stockholders of the
Corporation for election of directors and for the transaction of such other
business as may properly come before the meeting, shall be designated from time
to time by the Board of Directors.
SECTION 3. Special Meetings. Except as otherwise provided by law and by the
Certificate of Incorporation, special meetings of the stockholders maybe called
at any time by the Board of Directors or the Chairman of the Board, if one shall
have been elected, or the Vice-Chairman of the Board, if one shall have been
elected, or the President and shall not be called by the stockholders of the
Corporation, other than by Class B Common Stockholders, as provided in the
Certificate of Incorporation.
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SECTION 4. Notice of Meetings. Notice of the place, date and hour of
holding of each annual and special meeting of the stockholders and, unless it is
the annual meeting, the purpose or purposes, thereof, shall be given personally
or by mail in a postage prepaid envelope, not less than ten (10) nor more than
sixty (60) days before the date of such meeting, to each stockholder entitled to
vote at such meeting, and, if mailed, it shall be directed to such stockholder
at his address as it appears on the record of stockholders, unless he shall have
filed with the Secretary of the Corporation a written request that notices to
him be mailed at some other address, in which case it shall be directed to him
at such other address. Any such notice for any meeting other then the annual
meeting shall indicate that it is being issued at the direction of the Board of
Directors, the Chairman of the Board, the Vice-Chairman of the Board, the
President, the Secretary, or the Class B Common Stockholders, whichever shall
have called the meeting. 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, prior to the conclusion of such meeting, protest the
lack of notice thereof, or who shall, either before or after the meeting, submit
a signed waiver of notice, in person or by proxy. Unless the Board of Directors
shall fix a new record date for an adjourned meeting, notice of such adjourned
meeting need not be given if the time and place to which the meeting shall be
adjourned were announced at the meeting at which the adjournment is taken.
SECTION 5. Quorum. At all meetings of the stockholders, the holders of a
majority in voting power of the outstanding stock of the Corporation issued and
outstanding and entitled to vote on every matter that is to be voted on at such
a meeting shall be present in person or by proxy to constitute a quorum for the
transaction of business, except as otherwise provided by law and by the
Certificate of Incorporation. In the absence of a quorum, the holders of a
majority in voting power present in person or by proxy and entitled to vote may
adjourn the meeting from time to time. At any such adjourned meeting at which a
quorum may be present any business may be transacted which might have been
transacted at the meeting as originally called.
SECTION 6. Organization. At each meeting of the stockholders, the Chairman
of the Board, if one shall have been elected, shall act as chairman of the
meeting. In the absence of the Chairman of the Board or if one shall not have
been elected, the Vice-Chairman of the Board, or in his absence or if one shall
not have been elected, the President shall act as chairman of the meeting. The
Secretary, or in his absence or inability to act, the person whom the chairman
of the meeting shall appoint secretary of the meeting, shall act as secretary of
the meeting and keep the minutes thereof.
SECTION 7. Order of Business. The order of business at all meetings of the
stockholders shall be determined by the chairman of the meeting.
SECTION 8. Voting. Except as otherwise provided by law or by the
Certificate of Incorporation, each holder of record of shares of the Corporation
having voting power shall be entitled at each meeting of the stockholders to one
vote for each share standing in his name on the record of stockholders of the
Corporation. The record date for determining the holder of record shall be:
(a) the date fixed pursuant to the provisions of Section 6 of
Article V of these Bylaws as the record date for the determination of
the stockholders who shall be entitled to notice of and to vote at such
meeting; or
(b) if no such record date shall have been so fixed, then at the
close of business on the day next preceding the day on which notice
thereof shall be given.
Each stockholder entitled to vote at any meeting of the stockholders
may authorize another person or persons to act for him by a proxy signed by such
stockholder or his attorney-in-fact. Any such proxy shall be delivered to the
secretary of such meeting at or prior to the time designated in the order of
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business for so delivering such proxies. Except as otherwise provided by law or
the Certificate of Incorporation or these Bylaws, any corporate action to be
taken by vote of the stockholders shall be authorized by a majority of the votes
cast at a meeting of stockholders by the holders of shares present in person or
represented by proxy and entitled to vote on such action. Unless required by law
or determined by the chairman of the meeting to be advisable, the vote on any
question need not be by ballot. On a vote by ballot, each ballot shall be signed
by the stockholder acting, or by his proxy, if there be such proxy, and shall
state the number of shares voted.
SECTION 9. List of Stockholders. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before
each meeting of stockholders, a complete list of the stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order, showing the
address of 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 at the principal place of
business of the Corporation for a period of at least ten (10) days prior to the
meeting.
SECTION 10. 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 on the request of any stockholder entitled to vote at such
meeting, 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 faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. The inspector
shall determine the number of shares outstanding and the voting power of each,
the number of shares represented at the meeting, the existence of a quorum, 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 or any
stockholder entitled to vote thereat, the inspector 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 him. No director or candidate for the office
of director shall act as an inspector of an election of directors. Inspectors
need not be stockholders.
SECTION 11. Action by Consent. Whenever stockholders are required or
permitted to take any action by vote, such action 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 vote.
ARTICLE III.
Board of Directors
SECTION 1. General Powers. The business and affairs of the Corporation
shall be managed under the direction of the Board of Directors. The Board of
Directors may exercise all such authority and powers of the Corporation and do
all such lawful act and things as are not by law or the Certificate of
Incorporation directed or required to be exercised or done by the stockholders.
SECTION 2. Number, Qualifications, Election and Term of Office. Except as
otherwise provided by the Certificate of Incorporation, the number of directors
constituting the Board of Directors shall be determined by the Board of
Directors. Any decrease in the number of directors shall be effective at the
time of the next succeeding annual meeting of the stockholders unless there
shall be vacancies in the Board of Directors, in which case such decrease may
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become effective at any time prior to the next succeeding annual meeting to the
extent of the number of such vacancies. All the directors shall be at least
eighteen years of age. Directors need not be stockholders. Except as otherwise
provided by law, these Bylaws and the Certificate of Incorporation, the
directors shall be elected at the annual meeting of the stockholders. Subject to
the rights of holders of the Class B Common Stock as set forth in the
Certificate of Incorporation, at each meeting of the stockholders for the
election of directors at which a quorum is present the persons receiving a
plurality of the votes cast at such election shall be elected. Each director
shall hold office until the next annual meeting of the stockholders and until
his successor shall have been elected and qualified, or until his death, or
until he shall have resigned, or have been removed, as hereinafter provided in
these Bylaws.
SECTION 3. Place of Meetings. Meeting of the Board of Directors shall be
held at the principal office of the Corporation in the State of Delaware or at
such other place, within or without such state, as the Board of Directors may
from time to time determine or as shall be specified in the notice of any such
meeting.
SECTION 4. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such time and place as the Board of Directors may fix.
SECTION 5. Special Meetings. Special meetings of the Board of Directors may
be called by the Chairman, by a majority of the directors, or by a majority of
the Class B Directors.
SECTION 6. Notice of Meeting. Notice of each special meeting of the Board
of Directors (and of each regular meeting for which notice shall be required)
shall be given by the Secretary as hereinafter provided in this Section 6, in
which notice shall be stated the time and place of meeting. Except as otherwise
required by these Bylaws, such notice need not state the purposes of such
meeting. Notice of each such meeting shall be mailed, postage prepaid, to each
director, addressed to him at his residence or usual place of business, by
first-class mail, at least five days before the day on which such meeting is to
be held, or shall be sent addressed to him at such place by telegraph, cable,
telex, telecopier or other similar means, or be delivered to him personally or
be given to him by telephone, or ocher similar moans, at least forty-eight hours
before the time at which such meeting is co be held. Notice of any such meeting
need not be given to any director who shall, either before or after the meeting,
submit a signed waiver of notice or who shall attend such meeting without
professing, prior to or at its commencement, the lack of notice to him.
SECTION 7. Quorum and Manner of Acting.
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(a) Subject to subsection (b) of this Section 7, a majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, and, except as otherwise
expressly required by law, the Certificate of Incorporation or these
Bylaws, the act of a majority of the directors present at any meeting at
which a quorum is present shall be the act of the Board of Directors. In
the absence of a quorum at any meeting of the Board of Directors, a
majority of the directors present thereat may adjourn such meeting to
another time and place. Notice of the time and place of any such adjourned
meeting shall be given to the directors unless such time and place were
announced at the meeting at which the adjournment was taken. At any
adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
called. The directors shall act only as a Board and the individual
directors shall have no power as such.
(b) At least a majority of the directors designated by the holders of
Class B Common Stock pursuant to the Certificate of Incorporation ("Class B
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Directors") must be present at any meeting of the Board of Directors in
order to establish a quorum to conduct business, as long as there are Class
B Directors on the Board of Directors; provided, however, that the Board of
Directors will be entitled to take any action at any meeting if a quorum is
otherwise present if (i) the meeting is a regularly scheduled meeting of
the Board of Directors or (ii) the meeting is not a regularly scheduled
meeting and, after having been sent notice of such meeting, the Class B
Directors are not present at such meeting, and the Class B Directors who
are absent shall, in either the case of either (i) or (ii), have failed to
communicate in writing to the Secretary good reason for such absence in
advance of the relevant meeting.
SECTION 8. Supermajority Matters. The approval of at least 80% of the
members of the Board of Directors then in office shall be required to approve
each of the following transactions:
(a) the entry by the Corporation or any Subsidiary into any merger,
consolidation or amalgamation whether with or into any other Person;
(b) a sale, spin-off, transfer or other disposition of all or
substantially all of the assets or capital stock of any Subsidiary, or a
sale of greater than 30% of the assets of the Corporation, in each case in
any transaction or series of transactions;
(c) a liquidation, recapitalization or dissolution of the Corporation
or any Subsidiary or the filing of a bankruptcy petition by the Corporation
or any Subsidiary;
(d) the redemption, repurchase or issuance of capital stock of the
Corporation or any Subsidiary (including options, warrants or other rights
to acquire any such capital stock) in any amount, other than the issuance
of employee stock options pursuant to employee benefit plans (including the
1992 Stock Option Plan) that are administered by the Board of Directors, or
the redemption of securities at the option of the holder thereof in
accordance with the terms of such securities.
(e) any amendment to the Certificate of Incorporation or Bylaws of the
Corporation or any Subsidiary;
(f) any change in the accounting policies of the Corporation or any
Subsidiary, including any change in fiscal year, except as required by
applicable generally accepted accounting practices;
(g) any distribution or dividend by the Corporation;
(h) (i) the incurrence of Indebtedness by the Corporation or any
Subsidiary which results in a level of Indebtedness of the Corporation (on
a consolidated basis) in excess of $5 million or (ii) the creation,
assumption or incurrence of any Lien on the assets of the Corporation or
any Subsidiary, individually or in the aggregate, with respect to
Indebtedness in excess of $5 million outstanding at any time;
(i) any continuation or other support of any operations of
[ProductivIT] unless the anticipated monthly revenue from signed contracts
for such operations as of June 30, 2001 exceeds the actual June 2001 costs
related to such operations, including any general and administrative
overhead allocations to such operations; and
(j) the making of any Investment other than a Permitted Investment.
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For purposes of this Article Three, the following terms shall have the
meanings ascribed to them below:
"Guarantee" shall mean any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided, however, that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Indebtedness" shall mean, with respect to any Person at any date of
determination (without duplication): (i) all indebtedness of such Person for
borrowed money; (ii) all obligations of such Person evidenced by bonds,
debentures including any convertible debentures not converted, notes or other
similar instruments; (iii) all obligations of such Person in respect of letters
of credit or other similar instruments (including reimbursement obligations with
respect thereto); (iv) all obligations of such Person to pay the deferred and
unpaid purchase price of property or services, which purchase price is due more
than six months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services; (v) all
obligations of such Person as lessee under capitalized leases; (vi) all
indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such indebtedness is assumed by such Person; provided, however,
that the amount of such Indebtedness shall be the lesser of (A) the fair market
value of such asset at such date of determination and (B) the amount of such
indebtedness; and (vii) all indebtedness of other Persons Guaranteed by such
Person to the extent such Indebtedness is Guaranteed by such Person. The amount
of Indebtedness of any Person at any date shall be (without duplication) the
outstanding balance at such date of all unconditional obligations as described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency has not occurred and the occurrence of the
underlying contingency is entirely within the control of such Person).
"Investment" in any Person shall mean any direct advance, loan or other
extension of credit (including, without limitation, by way of Guarantee or
similar arrangement) or capital contribution to (by means of any transfer of
cash or other property to others or any payment for property or services for the
account or use of others), or any purchase or acquisition of capital stock,
bonds, notes, debentures or other similar instruments issued by, such Person.
"Lien" shall mean any mortgage, option, right of first refusal, right of a
third party, restriction on transfer or other ownership interest of any kind,
pledge, security interest, encumbrance, lien or charge of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof), any sale with recourse against a seller or any
affiliate of a seller, or any agreement to give any security interest.
"Permitted Investment" shall mean: (i) any capital contribution of $5
million or less per annum to any Subsidiary (or joint venture or similar entity
involving a profit sharing arrangement); (ii) the incurrence of Indebtedness by
the Corporation or any Subsidiary in an amount in any transaction or series of
transactions, individually or in the aggregate, totaling $5 million or less at
any time outstanding; (iii) any Investment in capital stock or assets of any
Person an amount in any transaction or series of related transactions of $5
million or less by the Corporation or any Subsidiary; or (iv) the Investment, in
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the ordinary course of business, by the Corporation or any Subsidiary of excess
cash in obligations of the U.S. government or of "first tier" financial
institutions.
"Person" shall mean an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint venture, or
other entity of whatever nature.
"Subsidiary" shall mean any Person in which the Corporation, directly or
indirectly, now or hereafter owns, acquires or holds an equity interest in
excess of 50% of all equity interests of such Person.
SECTION 9. Organization. At each meeting of the Board of Directors, the
Chairman of the Board, if one shall have been elected, shall act as the chairman
of the meeting, or in his absence or if one shall not have been elected, the
Vice-Chairman of the Board, or in his absence, or if one shall not have been
elected, the President, if he or she is a director (or, in his absence, another
director chosen by a majority of the directors present) shall act as chairman of
the meeting and preside thereat. The Secretary (or, in his absence, any person
- -- who shall be an Assistant Secretary, if any of them shall be present at such
meeting -- appointed by the chairman) shall act as secretary of the meeting and
keep the minutes thereof.
SECTION 10. Resignations. Any director of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors or
the Chairman of the Board or the Vice-Chairman of the Board or the President or
the Secretary. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, immediately upon its receipt. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
SECTION 11. Vacancies. Except as otherwise provided herein or by the
Certificate of Incorporation, any vacancy in the Board of Directors, whether
arising from death, resignation, removal (with or without cause), an increase in
the number of directors or any other cause, may be filled by the vote of a
majority of the directors then in office, though less then a quorum, or by the
stockholders at the next annual meeting thereof or at a special meeting thereof;
provided, however, that any vacancy relating to a Class B Director shall be
filled by the vote of a majority of the remaining Class B Directors or by
holders of a majority in voting power of the Class B Common Stock. Stockholders
of the Corporation may not apply to request that the Delaware Court of Chancery
summarily order an election to be held to fill vacancies in the Board of
Directors. Each director so elected shall hold office until the next meeting of
the stockholders in which the election of directors is in the regular order of
business and until his successor shall have been elected and qualified.
SECTION 12. Removal of Directors. Except as otherwise provided herein or by
the Certificate of Incorporation, a director may only be removed for cause, such
removal to be by the affirmative vote of the shares representing eighty percent
(80%) of the votes entitled to be cast by the Common Stock; provided, however,
that no Class B Director shall be removed from office, with or without cause,
unless the removal is approved by holders of 80% of the voting power of Class B
Common Stock. "Cause" for removal of a director shall be deemed to exist only
if: (i) the director whose removal is proposed has been convicted, or when a
director is granted immunity to testify when another has been convicted, of a
felony by a court of competent jurisdiction and such conviction is no longer
subject to direct appeal; (ii) such director has been found by the affirmative
vote of a majority of the Directors then in office at any regular or special
meeting of the Board of Directors called for that purpose, or by a court of
competent jurisdiction, to have been guilty of willful misconduct in the
performance of his duties to the Corporation in a matter of substantial
importance to the Corporation; (iii) such director has been adjudicated by a
court of competent jurisdiction to be mentally incompetent, which mental
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incompetency directly affects his ability as a director the Corporation; or (iv)
the entry of any order against such director by any governmental body having
regulatory authority with respect to the Corporation's business. Notwithstanding
the foregoing, whenever holders of outstanding shares of one or more series of
Preferred Stock are entitled to elect directors of the Corporation pursuant to
the provisions applicable in the case of arrearages in the payment of dividends
or other defaults contained in the resolution or resolutions of the Board of
Directors providing for the establishment of any such series, any such director
of the Corporation so elected may be removed in accordance with the provisions
of such resolution or resolutions; provided, however, that any vacancy relating
to a Class B Director shall be filled by a majority vote of the remaining Class
B Directors or, if less than two such directors remain, then by holders of a
majority in voting power of Class B Common Stock. "Common Stock" shall mean the
shares of the then outstanding capital stock entitled to vote generally on the
election of directors and shall exclude any class or series of capital stock
only entitled to vote in the event of dividend arrearages thereon or other
defaults thereunder, whether or not at the time of the determination there are
any such dividend arrearages or defaults.
SECTION 13. Compensation. The Board of Directors shall have authority to
fix the compensation, including fees and reimbursement of expenses, of directors
for services to the Corporation in any capacity.
SECTION 14. Committees. The Board of Directors may, by resolution passed by
a majority of the entire Board of Directors including at least one Class B
Director, designate one or more committees, including an executive committee,
each committee to consist of two or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent member at any meeting of the
committee. Except to the extent restricted by law and the Certificate of
Incorporation, each such committee, to the extent provided in the resolution
creating it, shall have and may exercise all the authority of the Board of
Directors. Each such committee shall serve at the pleasure of the Board of
Directors and have such name as may be determined from time to time by
resolution adopted by the Board of Directors. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors.
SECTION 15. Action by Consent. Unless restricted by the Certificate of
Incorporation, any action required or permitted to be taken by the Board of
Directors or any committee thereof may participate in a meeting of the Board of
Directors or any committee thereof may be taken without a meeting if all members
of the Board of Directors or such committee consent in writing to the adoption
of a resolution authorizing the action. The resolution and the written consents
thereto by the members of the Board of Directors or such committee shall be
filed with the minutes of the proceedings of the Board of Directors or such
committee.
SECTION 16. Telephonic Meeting. Unless restricted by the Certificate of
Incorporation or by law, any one or more members of the Board of Directors any
committee thereof may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other an the same
time. Participation by such means shall constitute presence in person at a
meeting.
ARTICLE IV.
Officers
SECTION 1. Number and Qualifications. The officers of the Corporation shall
be elected by the Board of Directors and shall include the Chairman of the
Board, elected from among the directors, and a President and a Secretary, who
need not be directors. If the Board of Directors wishes, it may also elect such
other officers of the Corporation, (including Vice-Chairman of the Board, a
chief
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operating officer, a chief financial officer, a chief technology officer, one or
more Vice Presidents, a Treasurer, one or more Assistant Treasurers and one or
more Assistant Secretaries), as may be necessary or desirable for the business
of the Corporation. Any two or more offices may be held by the same person. Each
officer shall hold office until the first meeting of the Board of Directors
following the next annual meeting of stockholders, and until his successor shall
have been elected and shall have qualified, or until his death, or until he
shall have resigned or have been removed, as hereinafter provided in these
Bylaws.
SECTION 2. Resignations. Any officer of the Corporation may resign at any
time by giving written notice of his resignation to the Board of Directors or
the Chairman the Board or the Vice-Chairman of the Board, if one shall be
elected, or the President or the Secretary. Any such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt. Unless
otherwise specified therein, the acceptance of any such resignation shall not be
necessary to make it effective.
SECTION 3. Removal. Any officer of the Corporation may be removed, either
with or without cause, at any time, by the Board of Directors at any meeting
thereof.
SECTION 4. Chairman of the Board. The Chairman of the Board shall be an
officer of the Corporation and shall be a member of the Board and, if present,
shall preside at each meeting of the Board of Directors or the stockholders. He
shall perform all duties incident to the office of Chairman, and shall perform
such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 5. Vice-Chairman of the Board. The Vice-Chairman of the Board, if
one shall have been elected, shall be a member of the Board, an officer of the
Corporation and, if present, shall preside at each meeting of the Board of
Directors if no Chairman of the Board has been elected or if the Chairman of the
Board is absent, or is unable or refuses to act. He shall advise and counsel the
Chairman of the Board, and in the Chairman's absence, the President, and, in the
President's absence, other executives of the Corporation, and shall perform such
other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 6. President. The President shall be the chief executive officer of
the Corporation and shall have general and active control of its affairs and
business and general supervision of its officers, agents and employees. He
shall, in the absence of the Chairman of the Board and the Vice-Chairman of the
Board or if neither has been elected, preside at each meeting of the Board of
Directors (if he/she is a director) or the stockholders. He shall perform all
duties incident to the office of the Chief Executive Officer and President and
chief executive officer and such other duties as may from time to time be
assigned to him by the Board of Directors.
SECTION 7. Chief Operating Officer. The Chief Operating Officer shall
perform all duties incident to the office of chief operating officer and such
other duties as may from time to time be assigned to him/her by the Board of
Directors.
SECTION 8. Chief Financial Officer. The Chief Operating Officer shall
perform all duties incident to the office of chief financial officer and such
other duties as may from time to time be assigned to him/her by the Board of
Directors.
SECTION 9. Chief Technology Officer. The Chief Technology Officer shall
perform all duties incident to the office of chief technology officer and such
other duties as may from time to time be assigned to him/her by the Board of
Directors.
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SECTION 10. Vice President. Each Vice-President shall perform all such
duties as from time to time may be assigned to him by the Board of Directors or
the President. At the request of the President, or in his absence or in the
event of his inability or refusal to act, the Vice-President, or if there shall
be more that one, the Vice-Presidents in the order determined by the Board of
Directors (or if there be no such determination, then the Vice-Presidents in the
order of their election), shall perform the duties of the President, and, when
so called, shall have the power of and be subject to the restrictions placed
upon the President in respect of the performance of such duties.
SECTION 11. Treasurer. The Treasurer shall
(a) have charge and custody of, and be responsible for, all the funds and
securities of the Corporation;
(b) keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation;
(c) deposit all moneys and other valuables to the credit of the Corporation
in such depositaries as may he designated by the Board of Directors or pursuant
to its direction;
(d) receive, and give receipts for, moneys due and payable to the
Corporation from any source whatsoever;
(e) disburse the funds of the Corporation and supervise the investments of
its funds, taking proper vouchers therefor;
(f) render to the Board of Directors, whenever the Board of Directors may
require, an account of the financial condition of the Corporation; and
(g) in general, perform all duties incident to the office of the Treasurer
and such other duties as from time to time may be assigned to him by the Board
of Directors.
SECTION 12. Secretary. The Secretary shall
(a) keep or cause to be kept in one or more books provided for the purpose,
the minutes of all meetings of the Board of Directors, the committees of the
Board of Directors and the stockholders;
(b) see that all notices are duly given in accordance with the provisions
of these Bylaws and as required by law;
(c) be custodian of the records of the Corporation and affix and attest the
seal to all certificates for shares of the Corporation (unless the seal of the
Corporation on such certificates shall be a facsimile, as hereinafter provided)
and affix and attest the seal to all other documents to be executed on behalf of
the Corporation under its seal;
(d) see that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are properly kept and
filed; and
(e) in general, perform all duties incident to the office of the secretary
and such other duties as from time to time may be assigned to him by the Board
of Directors.
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SECTION 13. Assistant Treasurer. The Assistant Treasurer, or if there shall
be more than one, the Assistant Treasurers in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of his
inability or refusal to act, perform the duties and exercise she powers of the
Treasurer and shall perform such other duties as from time to time may be
assigned by the Board of Directors.
SECTION 14. Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board of
Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the Secretary in the event of his inability
or refusal to act, perform the duties and exercise the powers of the Secretary
and shall perform such other duties as from time to time may be assigned by the
Board of Directors.
SECTION 15. Officers' Bonds or Other Security Assistant. If required by the
Board of Directors, any officer of the Corporation shall give a bond or other
security for the faithful performance of his duties, in such amount and with
such surety or sureties as the Board of Directors may require.
SECTION 16. Compensation. The compensation of the officers of the
Corporation for their services as such officers shall be fixed from time to time
by the Board of Directors. An officer of the Corporation shall not be prevented
from receiving compensation by reason of the fact that he is also a director of
the Corporation.
ARTICLE V.
Stock Certificates and Their Transfer
SECTION 1. Stock Certificates. Each owner of stock of the Corporation shall
be entitled to have a certificate, in such form as shall be approved by the
Board of Directors, certifying the number of shares of the Corporation owned by
him. The certificates representing shares shall be signed in the name of the
Corporation by the Chairman of the Board or the Vice-Chairman of the Board or
the President or a Vice-President and by the Secretary, an Assistant Secretary,
the Treasurer or an Assistant Treasurer, and sealed with the seal of the
Corporation (which seal may be a facsimile, engraved or printed); provided,
however, that where any such certificate is countersigned by a transfer agent,
or is registered by a registrar (other than the Corporation or one of its
employees), the signatures of the Chairman of the Board, Vice-Chairman of the
Board, President, Vice-President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer upon such certificates may be facsimiles, engraved or
printed. In case any officer who shall have signed any such certificate shall
have ceased to be such officer before such certificate shall be issued, it may
nevertheless be issued by the Corporation with the same effect as if such
officer were still in office at the date of their issue. When the Corporation is
authorized to issue shares of more than one class, there shall be set forth upon
the face or back of the certificate, (or the certificate shall have a statement
that the Corporation will furnish to any stockholder upon request and without
charge) a full statement of the designation, relative rights, preferences, and
limitations of the shares of each separate class, or of the different shares
within each class, authorized to be issued and, if the Corporation is authorized
to issue any class of preferred stock in series, the designation, relative
rights, preferences and limitations of each such series so far as the same have
been fixed and the authority of the Board of Directors to designate and fix the
relative rights, preferences and limitations of other series.
SECTION 2. Books of Account and Record of Stockholders. There shall be kept
correct and complete books and records of account of all the business and
transactions of the Corporation. There shall also be kept, at the office of the
Corporation, or at the office of its transfer agent, a record containing the
names and addresses of all stockholders of the Corporation, the number of shares
held by each, and the dates when they became the holders of record thereof.
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SECTION 3. Transfer of Shares. Transfers of shares of the Corporation shall
be made on the records of the Corporation only upon authorization by the
registered holder thereof, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary or with a transfer agent,
and on surrender of the certificate or certificates for such shares properly
endorsed or accompanied by a duly executed stock transfer power and the payment
of all taxes thereon. The person in whose name shares shall stand on the record
of stockholders of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation. Whenever any transfer of shares shall be
made for collateral security and not absolutely and written notice thereof shall
be given to the Secretary or to a transfer agent, such fact shall be noted on
the records of the Corporation.
SECTION 4. Transfer Agents and Registrars. The Board of Directors may
appoint, or authorize any officer or officers to appoint, one or more transfer
agents and one or more registrars and may require all certificates for shares of
stock to bear the signature of any of them.
SECTION 5. Regulations. The Board of Directors may make such additional
rules and regulations, not inconsistent with these Bylaws, as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of the Corporation.
SECTION 6. Fixing of Record Date. The Board of Directors may fix, in
advance, a date not more than sixty (60) nor less than ten (10) days before the
date when fixed for the holding of any meeting of the stockholders or before the
last day on which the consent or dissent of the stockholders may be effectively
expressed for any purpose whether a meeting, as the time as of which the
stockholders entitled to notice of and to vote at such meeting or whose consent
or dissent is required or may be expressed for any purpose, as the case may be,
shall be determined, and all persons who were stockholders of record of voting
shares at such time and no others, shall be entitled to notice of and to vote at
such meeting or to express their consent or dissent, as the case may be. The
Board of Directors may fix, in advance, a date not more than sixty (60) nor less
than ten (10) days preceding the date fixed for the payment of any dividend or
the making of any distribution or the allotment of rights to subscribe for
securities of the Corporation, or for the delivery of evidence of rights or
evidences of interests arising out of any change, conversion or exchange of
shares or other securities, as the record date for the determination of the
stockholders entitled to receive any such dividend, distribution, allotment,
rights or interests, and in such case only the stockholders of record at the
time so fixed shall be entitled to receive such dividend, distribution,
allotment, rights or interests.
SECTION 7. Lost, Destroyed or Mutilated Certificates. The holder of any
certificate representing shares of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of such certificate, and the
Corporation may issue a new certificate in the place of any certificate
theretofore issued by it which the owner thereof shall allege to have been lost
or destroyed or which shall have been mutilated. The Board of Directors may, in
its discretion, require such owner or his legal representatives to give to the
Corporation a bond in such sum, limited or unlimited, and in such form and with
such surety to sureties as the Board of Directors in its absolute discretion
shall determine, to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or destruction of any such
certificate, or the issuance of such new certificate.
ARTICLE VI.
Indemnification
SECTION 1. Right to Indemnification.
------------------------
Each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit or proceeding, whether civil, criminal,
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administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she, or a person of whom he or she is the legal representative,
is or was a director or officer, of the Corporation or is or was serving at the
request of the Corporation as a director or officer of another company,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director or officer or in any other
capacity while serving as a director or officer shall be indemnified and held
harmless by the Corporation to the fullest extent authorized by the DGCL, 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 said 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 or to be paid in settlement) incurred or suffered by such
person in connection therewith and such director or officer and shall inure to
the benefit of his or her heirs, executors and administrators; provided,
however, that, except as provided in Section 2 hereof, the Corporation shall
indemnify any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such proceeding
(or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Section 1 shall be a contract
right and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final disposition;
provided, however, that, if the DGCL requires, the payment of such expenses
incurred by a director or officer 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 person while a director or officer, including, without limitation, service
to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Section 1 or otherwise. The
Corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
SECTION 2. Right of Claimant to Bring Suit.
-------------------------------
If a claim under Article VI, Section 1 is not paid in full by the
Corporation within thirty (30) days after a written claim has been received by
the Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the DGCL for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. 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
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its Board of
Directors, independent legal counsel or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
SECTION 3. Non-Exclusivity of Rights.
-------------------------
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article VI shall not be exclusive of any other right which any person may have
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or hereafter acquire under any statute, provision of the Certificate of
Incorporation, Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
SECTION 4. 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
such 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
DGCL.
ARTICLE VII.
General Provisions
SECTION 1. Dividends. Subject to the law, the Certificate of Incorporation
and the other provisions of these Bylaws, dividends upon the shares of the
Corporation may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, in property or in shares of the
Corporation, unless otherwise provided by law and the Certificate of
Incorporation.
SECTION 2. Reserves. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as
the Board of Directors may, from time to time, in its absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation or
for such other purpose as the Board of Directors may think conducive to the
interests of the Corporation. The Board of Directors may modify or abolish any
such reserves in the manner in which it was created.
SECTION 3. Fiscal Year. The fiscal year of the Corporation shall be fixed,
and once fixed, may thereafter be changed, by resolution of the Directors.
SECTION 4. Checks, Notes, Drafts Etc. All checks, notes, drafts or other
orders for the payment of money of the Corporation shall be signed, endorsed or
accepted in the name of the Corporation by such officer, officers, person or
persons as from time to time may be designated by the Board of Directors or by
an officer or officers authorized by the Board of Directors to make such
designation.
SECTION 5. Execution of Contracts, Deeds, Etc. The Board of Directors may
authorize any officer or officers, agent or agents, in the name and on behalf of
the Corporation to enter into or execute and deliver any and all deeds, bonds,
mortgages, contracts and other obligations or instruments, and such authority
may be general or confined to specific instances.
SECTION 6. Voting of Stocks in Other Corporations. Unless otherwise
provided by the resolution of the Board of Directors, the Chairman of the Board,
the Vice-Chairman of the Board, the President or any Vice-President, from time
to time may (or may appoint one or more attorneys or agents to) cast the vote
which the Corporation may be entitled to cast as a stockholder or otherwise in
any other corporation, any of whose shares or securities may be held by the
Corporation, at meetings of the holders of the shares or other securities of
such other corporations, or to consent in writing to any action by any such
other corporation. In the event one or more attorneys or agents are appointed,
the Chairman of the Board, the Vice-Chairman of the Board, the President or any
Vice-President may instruct the person or persons so appointed as to the manner
of casting such votes or giving such consent. The Chairman of the Board, the
Vice-Chairman of the Board, the President or any Vice-President may, or may
instruct the attorneys or agents appointed to, execute or cause to be executed
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in the name and on behalf of the Corporation and under its seal or otherwise,
such written proxies, consents, waivers or other instruments as may be necessary
or proper in the premises.
ARTICLE VIII.
Force and Effect of Bylaws
These Bylaws are subject to the provisions of the DGCL and the
Corporation's Certificate of Incorporation, as it may be amended from time to
time. If any provision in these Bylaws is inconsistent with a provision in the
DGCL or the Certificate of Incorporation, the provision of the DGCL or the
Certificate of Incorporation shall govern. Wherever in these Bylaws references
are made to more than one incorporator, director, or stockholder, they shall, if
this is a sole incorporator, director, stockholder corporation, be construed to
mean the solitary person, and all provisions dealing with the quantum of
majorities or quorums shall be deemed to mean the action by the one person
constituting the Corporation.
ARTICLE IX.
Amendments
These Bylaws may be amended or repealed or new Bylaws may be adopted at an
annual or special meeting of stockholders at which a quorum is present or
represented, by the vote of the holders of shares entitled to vote thereon;
provided that notice of the proposed amendment or repeal or adoption of new
Bylaws is contained in the notice of such meeting and provided, further, that
any change that affects the rights of holders of the Class B Common Stock or the
Class B Directors shall be approved by a majority in voting power of the Class B
Common Stock. These Bylaws may also be amended or repealed or new Bylaws may be
adopted by the Board of Directors, subject to Article III, Section 8. Bylaws
adopted by the Board of Directors may be amended or repealed by the
stockholders.
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