Exhibit 3.2
BYLAWS OF
COVALENT GROUP, INC.
(a Delaware Corporation)
ARTICLE I
OFFICES AND FISCAL YEAR
Section 1.1. Offices. The Corporation may have an office or
offices at such places as the Board of Directors may from time to time
designate.
Section 1.2. Fiscal Year. The fiscal year of the Corporation
shall end on 31/st/ day of December each year.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 2.1. Annual Meetings. An annual meeting of
stockholders shall be held for the election of directors at such date, time and
place, either within or without the State of Delaware, as may be designated by
resolution of the Board of Directors from time to time. Any other proper
business may be transacted at the annual meeting.
(a) The Corporation shall hold annual meetings of stockholders
on such date and at such time as shall be designated from time to time by the
Board of Directors, the Chairman of the Board or the President. At each annual
meeting, the stockholders shall elect, in accordance with Section 2.9 hereof,
directors to serve until the next annual meeting of stockholders. The nomination
of persons for election to the Board of Directors and the proposal of any other
business to be transacted at an annual meeting may be made only (i) by or at the
direction of the Board of Directors or (ii) by any stockholder who satisfies the
qualifications set forth in Section (b) hereof and gives notice in accordance
with the procedures set forth in Section (b) hereof. Only persons thereby
nominated shall be eligible to serve as directors and only business thereby
proposed shall be transacted at an annual meeting. The presiding officer of the
annual meeting shall determine whether a nomination or any proposal of business
complies or complied with this ARTICLE II.
(b) Except as otherwise provided by law (including but not
limited to Rule 14a-8 of the Securities and Exchange Act of 1934, as amended or
any successor provision thereto (the "Exchange Act")), or in these bylaws, or
except as permitted by the presiding officer of the meeting in the exercise of
such officer's sole discretion in any specific instance, the business which
shall be conducted at any meeting of the stockholders shall (a) have been
specified in the written notice of the meeting (or any supplement thereto) given
by the Corporation, or (b) be brought before the meeting at the direction of the
Board of Directors or the presiding officer of the meeting, or (c) have been
specified in a written notice (a "Stockholder Meeting Notice") given to the
Corporation, in accordance with all of the requirements set forth below in this
Section (b), by or on behalf of any stockholder who shall have been a
stockholder of record on the date of giving such notice and on the record date
for such meeting and who shall continue to be entitled to vote at such meeting
through the date of such meeting. Each Stockholder Meeting Notice must be
delivered to the Secretary at the principal executive offices
of the Corporation in accordance with this Section (b). The Stockholder Meeting
Notice must be received by the Secretary not less than ninety (90) days nor more
than one-hundred twenty (120) days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than thirty (30) days or delayed
by more than sixty (60) days from such anniversary date, the stockholder must
deliver such Stockholder Meeting Notice not earlier than the one-hundred
twentieth (120th) day prior to such annual meeting and not later than the close
of business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made. The Stockholder Meeting Notice must
set forth: (i) as to each person whom the stockholder proposes to nominate for
election or reelection as a director, whether or not the Corporation is then
subject to Section 14(a) of the Exchange Act, (a) all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors pursuant to Section 14(a) of the Exchange Act, (b) such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected, and (c) a description of all arrangements
or understandings among the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which a nomination or
nominations are to be made by the stockholder; (ii) as to any other business
that the stockholder proposes to transact at the meeting, a brief description of
the business desired to be brought before the meeting, the reasons for
conducting the business at the meeting and any material interest in the business
of the stockholder and of the beneficial owner, if any, on whose behalf the
proposal is made; (iii) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made,
the name and address of the stockholder, as they appear on the Corporation's
books, and of such beneficial owner, the class and number of shares of the
Corporation that are owned beneficially and of record by such stockholder and
such beneficial owner and a representation that the stockholder intends to
appear in person or by proxy at the annual meeting to bring such business before
the meeting; and (vi) a representation that the stockholder intends to appear in
person or by proxy at the meeting to nominate the candidate or candidates for
election to the Board of Directors or to present the proposal to be brought
before the meeting. The presiding officer of the meeting may refuse to consider
any business that shall be brought before any meeting of stockholders of the
Corporation otherwise than as provided in this Section (b).
(c) For purposes of this Section 2.1, a "public announcement,"
means disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable news service, in a document publicly filed with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act (or their successor provisions), or in a notice of meeting or
proxy statement mailed generally to the Corporation's stockholders. In giving
notice under this Section 2.1, a stockholder must also comply with state law and
the Exchange Act. Nothing in this Section 2.1 shall be deemed to affect the
rights of a stockholder to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 (or its successor provision) under the
Exchange Act.
Section 2.2. Special Meetings. Special meetings of the
stockholders may be called at any time by the President, by resolution of the
Board of Directors, or at the request in writing of stockholders of record
owning fifty percent (50%) in amount of capital stock outstanding and entitled
to vote. Special meetings shall be at such date, time and place, either within
or without the State of Delaware, as may be designated by resolution of the
Board of
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Directors from time to time. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice relating to
such meeting (or to the purposes for which the meeting is called if such notice
is waived or is not required as provided in the General Corporation Law of the
State of Delaware (the "Delaware General Corporation Law") or these bylaws);
provided, however, that whenever the language of a proposed resolution is
included in a written notice of a special meeting of stockholders required to be
given under these bylaws, the meeting considering the resolution may without
further notice adopt it with such clarifying or other amendments as do not
enlarge its original purpose. In the case of a special meeting of stockholders
called for the purpose of electing directors, nominations may be made only (i)
by or at the direction of the Board of Directors or (ii) by any stockholder of
record who delivers to the Secretary, no later than the tenth day following the
day on which public announcement of the special meeting is made, a notice that
complies with and is delivered in accordance with Section Section 2.1(b) hereof.
Section 2.3. Notice of Meetings. Whenever stockholders are
required or permitted to take any action at a meeting, a written notice of the
meeting shall be given by, or at the direction of, the Secretary or other
authorized person that shall state the place, date and hour of the meeting and,
in the case of a special meeting, the purpose or purposes for which the meeting
is called. Unless otherwise provided by law, the certificate of incorporation or
these bylaws, the written notice of any meeting shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting. If the Secretary neglects or
refuses to give notice of a meeting, the person or persons calling the meeting
may do so.
Section 2.4. Waivers of Notice. Whenever the giving of any
notice is required by statute, the certificate of incorporation or these bylaws,
a waiver thereof, in writing and delivered to the Secretary, signed by the
person or persons entitled to said notice, whether before or after the event as
to which such notice is required, shall be deemed equivalent to notice.
Attendance of a stockholder at a meeting shall constitute a waiver of notice of
such meeting, except when the stockholder attends such meeting 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders need by specified in any written waiver of notice or any
waiver by the electronic transmission.
Section 2.5. Participation in Meetings of Stockholders.
Subject to the applicable provisions of the Delaware General Corporation Law,
stockholders (or proxy holders) not physically present at a meeting of
stockholders may, by means of remote communication, participate in a meeting of
stockholders and be deemed present in person and vote at a meeting of
stockholders, whether such meeting is to be held at a designated place or solely
by means of remote communication.
Section 2.6. Adjournments. Any meeting of stockholders, annual
or special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such adjourned meeting if the time
and place thereof are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the Corporation may transact any business which
might have been transacted at the original meeting. If the
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adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.7. Quorum. Except as otherwise provided by law, the
certificate of incorporation or these bylaws, at each meeting of stockholders
the presence in person or by proxy of the holders of a majority in voting power
of the outstanding shares of stock entitled to vote at the meeting shall be
necessary and sufficient to constitute a quorum. In the absence of a quorum, the
stockholders so present may, by a majority in voting power thereof, adjourn the
meeting from time to time in the manner provided in Section 2.6 hereof until a
quorum shall attend. Shares of its own stock belonging to the Corporation or to
another corporation, if a majority of the shares entitled to vote in the
election of directors of such other corporation is held, directly or indirectly,
by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the
Corporation or any subsidiary of the Corporation to vote stock, including but
not limited to its own stock, held by it in a fiduciary capacity. Subject to any
limitations contained in the laws of the State of Delaware, the stockholders
present at a duly organized meeting can continue to do business until
adjournment notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 2.8. Organization. Meetings of stockholders shall be
presided over by the Chairman of the Board, if any, or in his absence by the
President, or in his absence by a Vice President, or in the absence of the
foregoing persons by a chairman designated by the Board of Directors, or in the
absence of such designation by a chairman chosen at the meeting. The Secretary
shall act as secretary of the meeting, but in his absence the chairman of the
meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Voting; Proxies.
(a) Except as otherwise provided by or pursuant to the
provisions of the certificate of incorporation, each stockholder entitled to
vote at any meeting of stockholders shall be entitled to one (1) vote for each
share of stock held by such stockholder which has voting power upon the matter
in question. Voting at meetings of stockholders need not be by written ballot.
At all meetings of stockholders for the election of directors, a plurality of
the votes cast shall be sufficient to elect. All other elections and questions
shall, unless otherwise provided by the certificate of incorporation, these
bylaws, the rules or regulations of any stock exchange applicable to the
Corporation, as otherwise provided by law or pursuant to any regulation
applicable to the Corporation, be decided by the affirmative vote of the holders
of a majority in voting power of the shares of stock of the Corporation which
are present in person or by proxy and entitled to vote thereon.
(b) Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
(3) years from its date, unless the proxy provides for a longer period. A proxy
shall be irrevocable if it states that it is irrevocable and if, and only as
long as, it is coupled with an interest sufficient in law to support an
irrevocable power. A stockholder may revoke any
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proxy which is not irrevocable by attending the meeting and voting in person or
by filing an instrument in writing revoking the proxy or by delivering a proxy
in accordance with applicable law bearing a later date to the Secretary. Without
limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy pursuant to this Section (b), the
following shall constitute a valid means by which a stockholder may grant such
authority:
(1) A stockholder may execute a writing
authorizing another person or persons to act for such stockholder as proxy.
Execution may be accomplished by the stockholder or such stockholder's
authorized officer, director, employee or agent signing such writing or causing
such person's signature to be affixed to such writing by any reasonable means
including, but not limited to, by facsimile signature.
(2) A stockholder may authorize another person
or persons to act for such stockholder as proxy by transmitting or authorizing
the transmission of a telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission; provided that any such telegram, cablegram or other means of
electronic transmission must either set forth or be submitted with information
from which it can be determined that the telegram, cablegram or other electronic
transmission was authorized by the stockholder. If it is determined that such
telegrams, cablegrams or other electronic transmissions are valid, the
inspectors or, if there are no inspectors, such other persons making that
determination shall specify the information upon which they relied.
Section 2.10. Voting Rights of Fiduciaries. 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 (in person or by
proxy), unless in the transfer by the pledgor on the books of the Corporation
such person has expressly empowered the pledgee to vote thereon, in which case
only the pledgee, or such pledgee's proxy, may represent such stock and vote
thereon.
Section 2.11. Voting by Joint Holders of Shares. If shares or
other securities having voting power stand of record in the names of two or more
persons, whether fiduciaries, members of a partnership, joint tenants, tenants
in common, tenants by the entirety or otherwise, or if two or more persons have
the same fiduciary relationship respecting the same shares, 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, their acts with respect to voting shall have the following effect:
(a) if only one votes, such person's act binds all; (b) if more than one vote,
the act of the majority so voting binds all; (c) if more than one vote, but the
vote is evenly split on any particular matter, each faction may vote the
securities in question proportionally, or any person voting the shares, or a
beneficiary, if any, may apply to the Court of Chancery or such other court as
may have jurisdiction to appoint an additional person to act with the persons so
voting the shares, which shall then be voted as determined by a majority of such
persons and the person appointed by the Court. If the instrument so filed shows
that any such tenancy is held in unequal interests, a majority or even split for
the purpose of this subsection shall be a majority or even split in interest.
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Section 2.12. Fixing Date for Determination of Stockholders of
Record. In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment thereof,
or to express consent to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors, and which record date: (i) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60)
nor less than ten (10) days before the date of such meeting; and (ii) in the
case of any other action, shall not be more than sixty (60) days prior to such
other action. If no record date is fixed: (a) the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given, or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held; and (b) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 2.13. List of Stockholders Entitled to Vote. The
Secretary shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice of the
meeting, or if not so specified, at the place where the meeting is to be held.
The list shall also be produced and kept at the time and place of the meeting
during the whole time thereof and may be inspected by any stockholder who is
present. Upon the willful neglect or refusal of the directors to produce such a
list at any meeting for the election of directors, they shall be ineligible for
election to any office at such meeting. Except as otherwise provided by law, the
stock ledger shall be the only evidence as to who are the stockholders entitled
to examine the stock ledger, the list of stockholders or the books of the
Corporation, or to vote in person or by proxy at any meeting of stockholders.
Section 2.14. Inspectors of Election. The Corporation may, and
shall if required by law, in advance of any meeting of stockholders, appoint one
or more inspectors of election, who may be employees of the Corporation, to act
at the meeting or any adjournment thereof and to make a written report thereof.
The Corporation may designate one or more persons as alternate inspectors to
replace any inspector who fails to act. In the event that no inspector so
appointed or designated is able to act at a meeting of stockholders, the person
presiding at the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspector or inspectors so appointed or designated shall (i)
ascertain the number of shares of
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capital stock of the Corporation outstanding and the voting power of each such
share, (ii) determine the shares of capital stock of the Corporation represented
at the meeting and the validity of proxies and ballots, (iii) count all votes
and ballots, (iv) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors, and
(v) certify their determination of the number of shares of capital stock of the
Corporation represented at the meeting and such inspectors' count of all votes
and ballots. Such certification and report shall specify such other information
as may be required by law. In determining the validity and counting of proxies
and ballots cast at any meeting of stockholders of the Corporation, the
inspectors may consider such information as is permitted by applicable law. No
person who is a candidate for an office at an election may serve as an inspector
at such election.
Section 2.15. Conduct of Meetings. The date and time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote at a meeting shall be announced at the meeting by the person presiding
over the meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules,
regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. Unless and to the extent determined by
the Board of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section 2.16. Minors as Security Holders. The Corporation may
treat a minor who holds shares of stock or obligations of the Corporation as
having capacity to receive and to empower others to receive dividends, interest,
principal and other payments or distributions, to vote or express consent or
dissent and to make elections and exercise rights relating to such shares of
stock or obligations unless, in the case of payments or distributions on shares,
the corporate officer responsible for maintaining the list of stockholders or
the transfer agent of the Corporation or, in the case of payments or
distributions on obligations, the treasurer or paying officer or agent has
received written notice that the holder is a minor.
Section 2.17. Stockholder Action Without Meeting. Any action
required to be taken at any annual or special meeting of stockholders, or any
action which may be taken at any annual or special meeting of such stockholders
may be taken without a meeting, without prior written notice and without a vote,
if a consent in writing setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shares entitled to vote thereon were present and voted. Prompt notice
of the taking of corporate action without a
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meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. Management. The property and business of the
Corporation shall be managed by or under the direction of its Board of
Directors, consisting of not less than three (3) nor more than seven (7)
directors, as determined from time to time by resolution of the Board of
Directors.
Section 3.2. Number and Term. Within the limits set forth in
these bylaws, the number of directors shall be determined from time to time by
resolution of the Board of Directors. Once elected or chosen, a director shall
hold office until the next annual meeting of stockholders and until the
director's successor is elected and qualified or until the director dies,
resigns or is removed; provided, however, that if the Board of Directors
decreases the number of directors constituting the whole Board of Directors and
designates a particular directorship to be eliminated due to the decrease, a
director in the eliminated directorship shall cease to hold office after the
next election of directors, unless the director is nominated and elected to
another directorship on the Board of Directors.
Section 3.3. Vacancies. Vacancies, and newly created
directorships resulting from any increase in the authorized number of directors,
may be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director, and each person so selected shall be
a director to serve until the next annual meeting of stockholders, and until a
successor has been selected and qualified or until his or her earlier death,
resignation or removal. When one or more directors resigns from the Board of
Directors, effective at a future date, a majority of the directors then in
office, including those who have so resigned, shall have power to fill such
vacancy or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this Section 3.3 in the filling of other vacancies.
Section 3.4. Powers. The business and affairs of the
Corporation shall be 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, subject to any limitation set forth in the certificate
of incorporation or as otherwise may be provided in the Delaware General
Corporation Law.
Section 3.5. Place of Meetings. Meetings of the Board of
Directors may be held at such place within or without the State of Delaware as
the Board of Directors may from time to time appoint or as may be designated in
the notice of the meeting.
Section 3.6. Regular Meetings. Regular meetings of the Board
of Directors shall be held at such time and place as shall be designated from
time to time by resolution of the Board of Directors. Notice of a regular
meeting of the Board of Directors need not be given. Neither the business to be
transacted at, nor the purpose of, any regular meeting of the Board of Directors
need be specified in a notice of the meeting.
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Section 3.7. Special Meetings. Special meetings of the Board
of Directors shall be held whenever called by the Chairman, the President or by
two or more of the directors. Notice of every special meeting of the Board of
Directors shall be given to each director by telephone or in writing at least
twenty-four (24) hours (in the case of notice by telephone or facsimile
transmission) or forty-eight (48) hours (in the case of notice by telegraph,
courier service or express mail) or five (5) days (in the case of notice by
first class mail) before the time at which the meeting is to be held. Every such
notice shall state the time and place of the meeting, which may be held within
or without the State of Delaware. Neither the business to be transacted at, nor
the purpose of, any special meeting of the Board of Directors need be specified
in a notice of the meeting.
Section 3.8. Presence at Meetings. Members of the Board of
Directors may participate in a meeting of the Board of Directors by any
communication by means of which all participating directors can simultaneously
hear each other during the meeting. A director participating in a meeting by
this means is deemed to be present in person at the meeting.
Section 3.9. Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if the action is taken by all members of the Board of
Directors. The action must be evidenced by one (1) or more written consents
describing the action taken, signed by each director, and delivered to the
Corporation for inclusion in the minute book.
Section 3.10. Quorum; Vote Required. A majority of the
directors shall constitute a quorum, but a smaller number may adjourn from time
to time, without further notice, until a quorum is secured. The vote of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 3.11. Waiver of Notice of Meeting. A director may
waive any notice required by statute, the certificate of incorporation or these
bylaws before or after the date and time (i) stated in the notice or (ii) of the
meeting. Except as set forth below, the waiver must be in writing, signed by the
director entitled to the notice, and delivered to the Corporation for inclusion
in the minute book. Notwithstanding the foregoing, a director's attendance at or
participation in a meeting waives any required notice to the director of the
meeting unless the director at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting and does not thereafter vote
for or assent to action taken at the meeting.
Section 3.12. Removal. Any director or the entire Board of
Directors may be removed, with or without cause, by the holders of a majority of
the shares then entitled to vote at an election of directors.
Section 3.13. Compensation. The Board of Directors shall have
the authority to fix the compensation of directors for their services as
directors and a director may be a salaried officer of the Corporation.
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ARTICLE IV
COMMITTEES
Section 4.1. Committees. The Board of Directors may, by
resolution or resolutions passed by a majority of the whole Board of Directors,
designate an executive committee and one or more other committees each to
consist of one (1) or more of the directors of the Corporation. The executive
committee, if so designated, shall exercise all other powers of the Board of
Directors between the meetings of said Board of Directors, subject to the
limitations on the power and authority of committees of the Board of Directors
set forth in Section 4.4 hereof.
Section 4.2. Alternate Committee Members. The Board of
Directors 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 or for the purposes of any written action by the committee. In the
absence or disqualification of a member and alternate member or members of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum, may unanimously
appoint another Director to act at the meeting in the place of the absent or
disqualified member.
Section 4.3. Term. Each committee of the Board of Directors
shall serve at the pleasure of the Board of Directors.
Section 4.4. Power. No committee of the Board of Directors
shall have the power or authority to (i) approve or adopt, or recommend to the
stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval; (ii) adopt, amend
or repeal any of these bylaws; (iii) fill vacancies in the Board of Directors;
(iv) amend or repeal of any resolution of the Board of Directors that by its
terms is amendable or repealable only by the Board of Directors; and (ix) act on
matters committed by a resolution of the Board of Directors to another committee
of the Board of Directors.
Section 4.5. Meeting. The executive committee and such
other committees shall meet at stated times or on notice to all by any of their
own number. They shall fix their own rules of procedure.
Section 4.6. Other Powers. Such other committees shall have
and may exercise the powers of the Board of Directors to the extent as provided
in such resolution or resolutions.
ARTICLE V
OFFICERS
Section 5.1. Officers Generally.
(a) Number, Qualifications and Designation. The officers of
the Corporation shall be a President, a Secretary and a Treasurer. The Board of
Directors may also appoint a Chairman of the Board, one or more Vice Presidents,
and such other officers as may be elected in accordance with the provisions of
Section 5.3 hereof. Officers may but need not be directors or stockholders of
the Corporation. Any number of offices may be held by the same person.
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(b) Bonding. The Corporation may secure the fidelity of any
or all of its officers by bond or otherwise.
Section 5.2. Election, Term of Office and Resignations.
(a) Election and Term of Office. The officers of the
Corporation, except those elected by delegated authority pursuant to Section 5.3
hereof, shall be elected annually by the Board of Directors, and each such
officer shall hold office for a term of one year and until a successor has been
selected and qualified or until his or her earlier death, resignation or
removal.
(b) Resignations. Any officer may resign at any time upon
written notice to the Corporation. The resignation shall be effective upon
receipt thereof by the Corporation or at such subsequent time as may be
specified in the notice of resignation.
Section 5.3. Subordinate Officers, Committees and Agents. The
Board of Directors may from time to time elect such other officers and appoint
such committees, employees or other agents as the business of the Corporation
may require, including one or more Assistant Secretaries, and one or more
Assistant Treasurers, each of whom shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws, or as the
Board of Directors may from time to time determine. The Board of Directors may
delegate to any officer or committee the power to elect subordinate officers and
to retain or appoint employees or other agents, or committees thereof, and to
prescribe the authority and duties of such subordinate officers, committees,
employees or other agents.
Section 5.4. Removal of Officers and Agents. Any officer or
agent of the Corporation may be removed by the Board of Directors with or
without cause and any other officer or agent appointed by a person to whom the
authority to appoint each officer or agent has been delegated pursuant to
Section 5.3 hereof may be removed by such person with or without cause. The
removal shall be without prejudice to the contract rights, if any, of any person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
Section 5.5. Vacancies. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause, may be filled
by the Board of Directors or by the officer or committee to which the power to
fill such office has been delegated pursuant to Section 5.3 hereof, as the case
may be, and if the office is one for which these bylaws prescribe a term, shall
be filled for the unexpired portion of the term.
Section 5.6. Authority. All officers of the Corporation, as
between themselves and the Corporation, shall have such authority and perform
such duties in the management of the Corporation as may be provided by or
pursuant to resolutions or orders of the Board of Directors or, in the absence
of controlling provisions in the resolutions or orders of the Board of
Directors, as may be determined by or pursuant to these bylaws.
Section 5.7. The Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the stockholders and of the Board of
Directors, and shall perform such other duties as may from time to time be
requested by the Board of Directors.
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Section 5.8. The President. The President shall be the chief
executive officer of the Corporation, and shall have general supervision over
the business and operations of the Corporation, subject however, to the control
of the Board of Directors. In the absence of the Chairman of the Board, the
President shall preside at all meetings of the stockholders and of the Board of
Directors. The President shall sign, execute, and acknowledge, in the name of
the Corporation, deeds, mortgages, bonds, contracts or other instruments,
authorized by the Board of Directors, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors, or by
these bylaws, to some other officer or agent of the Corporation; and, in
general, shall perform all duties incident to the office of the President and
such other duties as from time to time may be assigned by the Board of
Directors.
Section 5.9. The Vice Presidents. The Vice Presidents shall
perform such duties as from time to time may be assigned to them by the Board of
Directors or the President.
Section 5.10. The Secretary. The Secretary or an Assistant
Secretary shall attend all meetings of the stockholders and of the Board of
Directors and all committees thereof and shall record all the votes of the
stockholders and of the directors and the minutes of the meetings of the
stockholders and of the Board of Directors and of committees of the Board of
Directors in a book or books to be kept for that purpose; shall see that notices
are given and records and reports properly kept and filed by the Corporation as
required by law; shall be the custodian of the seal of the Corporation and see
that it is affixed to all documents to be executed on behalf of the Corporation
under its seal; and, in general, shall perform all duties incident to the office
of Secretary, and such other duties as from time to time may be assigned by the
Board of Directors or the President.
Section 5.11. The Treasurer. The Treasurer or an Assistant
Treasurer shall have or provide for the custody of the funds or other property
of the Corporation; shall collect and receive or provide for the collection and
receipt of moneys earned by or in any manner due to or received by the
Corporation; shall deposit all funds in his or her custody as Treasurer in such
banks or other places of deposit as the Board of Directors may from time to time
designate; shall, whenever so required by the Board of Directors, render an
account showing all transactions as Treasurer, and the financial condition of
the Corporation; and, in general, shall discharge such other duties as from time
to time may be assigned by the Board of Directors or the President.
Section 5.12. Salaries. The salaries of the officers elected
by the Board of Directors shall be fixed from time to time by the Board of
Directors, by such committee thereof or by such officer as may be designated by
resolution of the Board of Directors. The salaries or other compensation of any
other officers, employees and other agents shall be fixed from time to time by
the officer or committee to which the power to elect such officers or to retain
or appoint such employees or other agents has been delegated pursuant to Section
5.3 hereof. No officer shall be prevented from receiving such salary or other
compensation by reason of the fact that the officer is also a director of the
Corporation.
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ARTICLE VI
STOCK
Section 6.1. Certificates of Stock. Certificates of stock shall be
signed by the Chairman, the President or a Vice President and either the
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary. The share
certificates of the Corporation shall be numbered and registered in the share
register or transfer books of the Corporation as they are issued. In case any
officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed upon, any share certificate shall have ceased to be
such officer, transfer agent or registrar because of death, resignation or
otherwise, before the certificate is issued, the certificate may be issued with
the same effect as if the officer, transfer agent or registrar had not ceased to
be such at the date of its issue. The provisions of this Section 6.1 shall be
subject to any inconsistent or contrary agreement in effect at the time between
the Corporation and any transfer agent or registrar.
Section 6.2. Form of Certificates. Certificates for shares of stock in
the Corporation shall be in such form as approved by the Board of Directors, and
shall state that the Corporation is incorporated under the laws of the State of
Delaware, the name of the person to whom issued, and the number and class of
shares and the designation of the series (if any) that the certificate
represents. If the Corporation is authorized to issue shares of more than one
class or series, certificates for shares of the Corporation shall set forth upon
the face or back of the certificate (or shall state on the face or back of the
certificate that the Corporation will furnish to any shareholder upon request
and without charge), a full or summary statement of the designations, voting
rights, preferences, limitations and special rights of the shares of each class
or series authorized to be issued so far as they have been fixed and determined
and the authority of the Board of Directors to fix and determine the
designations, voting rights, preferences, limitations and special rights of the
classes and series of shares of the Corporation.
Section 6.3. Share Register. The share register or transfer books and
blank share certificates shall be kept by the Secretary or by any transfer agent
or registrar designated by the Board of Directors for that purpose.
Section 6.4. Lost or Destroyed Certificates. If a certificate of
stock be lost or destroyed, another may be issued in its stead upon proof of
loss or destruction and the giving of a satisfactory bond of indemnity in an
amount sufficient to indemnify the Corporation against any claim. A new
certificate may be issued without requiring bond when, in the judgment of the
directors, it is proper to do so.
Section 6.5. Transfer of Stock. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction on its books. No transfer shall be made inconsistent with the
provisions of the Uniform Commercial Code, 6 Del. C.(S) 8-101 et seq., and its
amendments and supplements.
Section 6.6. Stockholders of Record. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly
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shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person whether or not it shall have express
or other notice thereof, save as expressly provided by the laws of the State of
Delaware.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Right To Indemnification. Each person who was or is a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
("Proceeding"), including without limitation Proceedings by or in the right of
the Corporation to procure a judgment in its favor, by reason of the fact that
he or she or a person for whom he or she is the legal representative is or was a
director or officer, employee or agent of the Corporation or is or was serving
at the request of the Corporation as a director or officer, employee or agent of
another corporation, or of a 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, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment) against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith. Such right shall be
a contract right and shall include the right to be paid by the Corporation for
expenses incurred in defending any such Proceeding in advance of its final
disposition; provided, however, that the payment of such expenses incurred by a
director or officer of the Corporation 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 such
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 should be determined ultimately that such director or officer
is not entitled to be indemnified under this Section 7.1 or otherwise.
Section 7.2. Right of Claimant To Bring Suit. If a claim under
Section 7.1 hereof is not paid in full by the Corporation within ninety (90)
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 has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it permissible
under the Delaware General Corporation Law 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
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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 Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel,
or its stockholders) that the claimant had not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that claimant
had not met the applicable standard of conduct.
Section 7.3. Non-Exclusivity of Rights. The rights conferred by
Section 7.1 and Section 7.2 hereof shall not be exclusive of any other right
which such person may have or hereafter acquire under any statute, provision of
the certificate of incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 7.4. Insurance. The Corporation may maintain insurance, at
its expense, to protect itself and any such 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 Delaware General Corporation Law.
Section 7.5. Other Sources. The Corporation's obligation, if any, to
indemnify or to advance expenses to any indemnitee who was or is serving at its
request as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity shall be
reduced by any amount such indemnitee may collect as indemnification or
advancement of expenses from such other corporation, partnership, joint venture,
trust, enterprise or non-profit enterprise.
Section 7.6. Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VII shall not adversely affect any right or
protection hereunder of any indemnitee in respect of any act or omission
occurring prior to the time of such repeal or modification.
Section 7.7. Other Indemnification and Prepayment of Expenses. This
Article VII shall not limit the right of the Corporation, to the extent and in
the manner permitted by law, to indemnify and to advance expenses to persons
other than indemnitees when and as authorized by appropriate corporate action.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Corporate Seal. The Corporation shall have a corporate
seal in the form of a circle containing the name of the Corporation, the year of
incorporation and such other details as may be approved by the Board of
Directors. The affixation of the corporate seal shall not be necessary to the
valid execution, assignment or endorsement by the Corporation of any instrument
or other document.
Section 8.2. Interested Directors; Quorum. No contract or
transaction between the Corporation and one or more of the 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
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voidable solely for this reason, or solely because the Director or officer is
present at or participates in the meeting of the Board of Directors or committee
which authorizes the contract or transaction, or solely because any such
Director's or officer's votes are counted for such purpose, if: (i) the material
facts as to the Director's or officer's relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to the Director's or officer's
relationship or interest and as to the contract or transaction are disclosed or
are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 8.3. Checks For Money. All checks, notes, bills of exchange
or other similar orders in writing shall be signed by such one or more officers
or employees of the Corporation as the Board of Directors may from time to time
designate.
Section 8.4. Contracts. Except as otherwise provided in the
Delaware General Corporation Law in the case of transactions that require action
by the stockholders, the Board of Directors may authorize any officer or agent
to enter into any contract or to execute or deliver any instrument on behalf of
the Corporation, and such authority may be general or confined to specific
instances.
Section 8.5. Books and Records. The Corporation shall keep complete
and accurate books and records of account, minutes of the proceedings of the
incorporators, stockholders and directors and a share register giving the names
and addresses of all stockholders and the number and class of shares held by
each. The share register shall be kept at either the registered office of the
Delaware General Corporation Law or at its principal place of business wherever
situated or at the office of its registrar or transfer agent. Any books, minutes
or other records may be in written form or any other form capable of being
converted into written form within a reasonable time. Any stockholder, in person
or by attorney or other agent, shall, upon written demand under oath stating a
proper purpose therefor, have the right during the usual hours for business to
inspect for any proper purpose the Corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the Corporation at its registered
office in the State of Delaware or at its principal place of business.
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Section 8.6. Amendment.
(a) Except as otherwise provided herein, these Bylaws may be
amended by the affirmative vote of a majority of the directors then holding
office at any regular or special meeting of the Board of Directors and/or by the
affirmative vote of the stockholders at any annual or special meeting of the
stockholders called for that purpose.
(b) Without the affirmative vote of the stockholders, the Board of
Directors shall have no power to adopt or amend a Bylaw: (a) requiring more than
a majority of the voting shares for a quorum at a meeting of stockholders or
more than a majority of the votes cast to constitute action by the stockholders,
except where higher percentages are required by law; (b) providing for the
management of the Corporation otherwise than by the Board of Directors or any
committee designated by it; or (c) classifying and staggering the election of
directors.
Section 8.7. Notices. Except as otherwise specifically provided
herein or required by law, all notices required to be given to any stockholder,
director, officer, employee or agent shall be in writing and may be given to the
person either personally or by sending a copy thereof by first class or express
mail, postage prepaid, or by telegram (with messenger service specified), or
courier service, charges prepaid, or by facsimile transmission, to the address
(or to facsimile or telephone number) of the person appearing on the books of
the Corporation or, in the case of directors, supplied by the director to the
Corporation for the purpose of notice. If the notice is sent by mail, telegraph
or courier service, it shall be deemed to have been given to the person entitled
thereto when deposited in the United States mail or with a telegraph office or
courier service for delivery to that person or, in the case of facsimile
transmission, when received. A notice of meeting shall specify the place, day
and hour of the meeting and any other information required by any other
provision of the Business Corporation Law, the articles or these bylaws.
Section 8.8. Exception to Requirement of Notice.
(a) Whenever notice is required to be given, under any provision
these bylaws to any person with whom communication is unlawful, the giving of
such notice to such person shall not be required and there shall be no duty to
apply to any governmental authority or agency for a license or permit to give
such notice to such person. Any action or meeting which shall be taken or held
without notice to any such person with whom communication is unlawful shall have
the same force and effect as if such notice had been duly given. In the event
that the action taken by the Corporation is such as to require the filing of a
certificate under the Delaware General Corporation Law, the certificate shall
state, if such is the fact and if notice is required, that notice was given to
all persons entitled to receive notice except such persons with whom
communication is unlawful.
(b) Whenever notice is required to be given, under these bylaws to
any stockholder to whom (1) notice of two consecutive annual meetings, and all
notices of meetings or of the taking of action by written consent without a
meeting to such person during the period between such two consecutive annual
meetings, or (2) all, and at least two, payments (if sent by first-class mail)
of dividends or interest on securities during a twelve (12) month period, have
been mailed addressed to such person at such person's address as shown on the
records of the
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Corporation and have been returned undeliverable, the giving of such notice to
such person shall not be required. Any action or meeting which shall be taken or
held without notice to such person shall have the same force and effect as if
such notice had been duly given. If any such person shall deliver to the
Corporation a written notice setting forth such person's then current address,
the requirement that notice be given to such person shall be reinstated. In the
event that the action taken by the Corporation is such as to require the filing
of a certificate under the Delaware General Corporation Law, the certificate
need not state that notice was not given to persons to whom notice was not
required to be given pursuant to this subsection.
DATED: April 17, 2002
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