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Exhibit 3.5
AMENDED AND RESTATED BY-LAWS
OF
KANBAY INTERNATIONAL, INC.
A DELAWARE CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation in
the State of Delaware shall be located at 2711 Centerville Road, Suite 400,
Wilmington, New Castle County Delaware 19808. The name of its registered agent
at such address is Corporation Service Company. The registered office and/or
registered agent of the Corporation may be changed from time to time by action
of the board of directors.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE AND TIME OF MEETINGS. An annual meeting of the
stockholders shall be held each year for the purpose of electing directors and
conducting such other proper business as may come before the meeting. Unless
otherwise directed by the board of directors, annual meetings of stockholders
shall be held on a date not later than the end of the sixth (6th) calendar month
after the conclusion of the Corporation's fiscal year, unless a legal holiday,
then on the first preceding regular business day. At the annual meeting,
stockholders shall elect directors and transact such other business as properly
may be brought before the meeting pursuant to Article II, Section 11 hereof.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders may be called
for any purpose and may be held at such time and place, within or without the
State of Delaware, as shall be stated in a notice of meeting or in a duly
executed waiver of notice thereof. Such meetings may be called at any time by
the chairman of the board, the chief executive officer or the secretary pursuant
to a resolution adopted by a majority of directors then in office. The only
matters that may be considered at any special meeting of the stockholders are
the matters specified in the notice of the meeting.
SECTION 3. PLACE OF MEETINGS. The board of directors may designate any
place, either within or without the State of Delaware, as the place of meeting
for any annual meeting or for
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any special meeting of the stockholders. If no designation is made, the place of
meeting shall be the principal executive office of the Corporation.
SECTION 4. NOTICE. Whenever stockholders are required or permitted to take
action at a meeting, written or printed notice stating the place, date, time,
and, in the case of special meetings, the purpose or purposes, of such meeting,
shall be given to each stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the date of the meeting.
Except as otherwise provided in Section 5 hereof, all such notices shall be
delivered, either personally or by mail, by or at the direction of the board of
directors, the chairman of the board, the chief executive officer or the
secretary, and if mailed, such notice shall be deemed to be delivered and
deposited in the United States mail, postage prepaid, addressed to the
stockholder at his, her or its address as the same appears on the records of the
Corporation. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends 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.
SECTION 5. NOTICE BY ELECTRONIC TRANSMISSION.
(a) Without limiting the manner by which notice otherwise may be given
effectively to stockholders, any notice to stockholders given by the Corporation
under any provision of the Delaware General Corporation Law, the certificate of
incorporation, or these by-laws, shall be effective if given by a form of
electronic transmission consented to by the stockholder to whom the notice is
given. Any such consent shall be revocable by the stockholder by written notice
to the Corporation. Any such consent shall be deemed revoked if (1) the
Corporation is unable to deliver by electronic transmission two consecutive
notices given by the Corporation in accordance with such consent and (2) such
inability becomes known to the secretary or an assistant secretary of the
Corporation or to the transfer agent, or other person responsible for the giving
of notice; provided, however, the inadvertent failure to treat such inability as
a revocation shall not invalidate any meeting or other action.
(b) Notice given pursuant to subsection (a) of this Section 5 shall be
deemed given: (1) if by facsimile telecommunication, when directed to a number
at which the stockholder has consented to receive notice; (2) if by electronic
mail, when directed to an electronic mail address at which the stockholder has
consented to receive notice; (3) if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting and (B) the giving of such separate notice; and
(4) if by any other form of electronic transmission, when directed to the
stockholder. An affidavit of the secretary or an assistant secretary or of the
transfer agent or other agent of the Corporation that the notice has been given
by a form of electronic transmission shall, in the absence of fraud, be prima
facie evidence of the facts stated therein.
(c) For purposes hereof, "electronic transmission" means any form of
communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient
thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
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SECTION 6. STOCKHOLDERS LIST. The officer having charge of the stock ledger
of the Corporation shall prepare and make, at least ten (10) days before every
meeting of the stockholders, a complete list of the stockholders entitled to
vote at such meeting, arranged in alphabetical order, showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. The Corporation shall not be required to include electronic mail
addresses or other electronic contact information on such list. Such list shall
be open to the examination of any stockholder, for any purpose germane to the
meeting, for a period of at least ten (10) days prior to the meeting, (i) on a
reasonably accessible electronic network, provided that the information required
to gain access to such list is provided with the notice of the meeting, or (ii)
during ordinary business hours at the principal place of business of the
Corporation. 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. In the event that the Corporation determines to make
the list available on an electronic network, the Corporation will take
reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a place, then
the list shall 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.
If the meeting is to be held solely by means of remote communication, then the
list shall also be open to the examination of any stockholder during the whole
time of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of
the meeting.
SECTION 7. QUORUM. The holders of a majority of the outstanding shares of
capital stock entitled to vote, present in person or represented by proxy, shall
constitute a quorum at all meetings of the stockholders, except as otherwise
provided by statute or by the certificate of incorporation. Abstentions and
broker non-votes are counted as present and entitled to vote for purposes of
determining a quorum. If a quorum is not present, the holders of a majority of
the shares present in person or represented by proxy at the meeting, and
entitled to vote at the meeting, may adjourn the meeting to another time and/or
place. When a specified item of business requires a vote by a class or series
(if the Corporation shall then have outstanding shares of more than one class or
series) voting as a class, the holders of a majority of the shares of such class
or series shall constitute a quorum (as to such class or series) for the
transaction of such item of business.
SECTION 8. ADJOURNED MEETINGS. When a meeting is adjourned to another time
and place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken. At
the adjourned meeting, the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more
than thirty days (30), or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
SECTION 9. VOTE REQUIRED. When a quorum is present, the affirmative vote of
the majority of shares present in person or represented by proxy at the meeting
and entitled to vote on the subject matter shall be the act of the stockholders,
unless (i) by express provisions of an applicable law or of the certificate of
incorporation a different vote is required, in which case such express provision
shall govern and control the decision of such question, or (ii) the subject
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matter is the election of directors, in which case Section 2 of Article III
hereof shall govern and control the approval of such subject matter, or (iii)
the amendment of any provision listed in Article VIII, in which case Article
VIII hereof shall govern and control the approval of such subject matter.
SECTION 10. VOTING RIGHTS. Except as otherwise provided by the Delaware
General Corporation Law or by the certificate of incorporation of the
Corporation or any amendments thereto and subject to Section 3 of Article VI
hereof, every stockholder shall at every meeting of the stockholders be entitled
to one (1) vote in person or by proxy for each share of common stock held by
such stockholder.
SECTION 11. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting in accordance with Section 14 of Article II hereof, may
authorize another person or persons to act for him or her 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 duly executed proxy shall be
irrevocable if it states that it is irrevocable and if, and only as long as, it
is coupled with an interest sufficient in law to support an irrevocable power. A
proxy may be made irrevocable regardless of whether the interest with which it
is coupled is an interest in the stock itself or an interest in the Corporation
generally. Any proxy is suspended when the person executing the proxy is present
at a meeting of stockholders and elects to vote, except that when such proxy is
coupled with an interest and the fact of the interest appears on the face of the
proxy, the agent named in the proxy shall have all voting and other rights
referred to in the proxy, notwithstanding the presence of the person executing
the proxy. At each meeting of the stockholders, and before any voting commences,
all proxies filed at or before the meeting shall be submitted to and examined by
the secretary or a person designated by the secretary, and no shares may be
represented or voted under a proxy that has been found to be invalid or
irregular.
SECTION 12. BUSINESS BROUGHT BEFORE A MEETING. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of directors, (b) brought
before the meeting by or at the direction of the board of directors, or (c)
otherwise properly brought before the meeting by a stockholder. For business to
be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation, not less
than sixty (60) days nor more than ninety (90) days prior to the anniversary
date of the immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date that is
not within thirty (30) days before or after such anniversary date, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth (10th) day following the date on which such notice of the
date of the annual meeting was mailed or such public disclosure was made,
whichever first occurs. A stockholder's notice to the secretary shall set forth
as to each matter the stockholder proposes to bring before the annual meeting
(a) a brief description of the business desired to be brought before the annual
meeting, (b) the name and address, as they appear on the Corporation's books,
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of the stockholder proposing such business, (c) the class and number of shares
of the Corporation which are beneficially owned by the stockholder, and (d) any
material interest of the stockholder in such business. Notwithstanding anything
in these by-laws to the contrary, no business shall be conducted at an annual
meeting except in accordance with the procedures set forth in this Section 11 of
Article II. If the facts warrant, the presiding officer of an annual meeting may
determine that the business was not properly brought before the meeting in
accordance with the provisions of this Section 11 of Article II and in such
event, he or she shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
SECTION 13. ABSTENTIONS AND BROKER NON-VOTES. With respect to the election
of directors, abstentions and broker non-votes shall not be counted either as
votes for or against the election of any director but shall be counted to
determine whether a quorum is present. With respect to any other matter, except
as otherwise required by law, an abstention shall be counted as a vote against
such matter, a broker non-vote shall not be counted either as a vote for or
against such matter, and both shall be counted to determine whether a quorum is
present.
SECTION 14. ACTION BY WRITTEN CONSENT. Subject to the rights of the holders
of any series of preferred stock, from and after the date on which the common
stock of the Corporation is initially registered pursuant to the Securities
Exchange Act of 1934, as amended, any action required or permitted to be taken
by the stockholders of the Corporation must be effected at an annual or special
meeting of stockholders of the Corporation and may not be effected in lieu
thereof by any consent in writing by such stockholders unless the action to be
effected by written consent of the stockholders and the taking of such action by
written consent have been approved in advance by a resolution adopted by the
board of directors.
ARTICLE III
DIRECTORS
SECTION 1. GENERAL POWERS. The business and affairs of the Corporation
shall be managed by or under the direction of the board of directors. In
addition to such powers as are herein and in the certificate of incorporation
expressly conferred upon it, the board of directors shall have and may exercise
all the powers of the Corporation, subject to the provisions of the laws of
Delaware, the certificate of incorporation and these by-laws.
SECTION 2. NUMBER, ELECTION AND TERM OF OFFICE. The number of directors
which shall constitute the board shall be such as from time to time shall be
fixed by the board of directors in the manner as provided in these by-laws and
such number shall initially be seven (7). The directors shall be elected by a
plurality of the votes of the shares present in person or represented by proxy
at the meeting and entitled to vote in the election of directors; provided that,
whenever the holders of any class or series of capital stock of the Corporation
are entitled to elect one or more directors pursuant to the provisions of the
certificate of incorporation of the Corporation (including, but not limited to,
for purposes of these by-laws, pursuant to any duly authorized certificate of
designation), such directors shall be elected by a plurality of the votes of
such class or series present in person or represented by proxy at the meeting
and entitled to vote in the election of such directors. The directors shall be
elected in this manner at the annual meeting of
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the stockholders, except as provided in Section 4 of this Article III. Each
director elected shall hold office until a successor is duly elected and
qualified or until his or her earlier death, resignation or removal as
hereinafter provided.
SECTION 3. REMOVAL AND RESIGNATION. Except as otherwise provided in the
certificate of incorporation, a director or the entire board of directors may be
removed only with cause by the holders of a majority of the outstanding shares
of stock entitled to vote generally in the election of directors, voting
together as a single class; provided, however, that if the holders of any class
or series of capital stock are entitled by the provisions of the Corporation's
certificate of incorporation to elect one or more directors, such director or
directors so elected may be removed without cause only by the vote of the
holders of a majority of the outstanding shares of that class or series entitled
to vote. Any director may resign at any time upon written notice or electronic
transmission to the Corporation.
SECTION 4. VACANCIES. Vacancies and newly created directorships resulting
from any increase in the total number of directors established by the board
pursuant to Section 2 of this Article III may be filled only by the affirmative
vote of the majority of the total number of directors then in office, though
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy resulting from an increase in the number of directors shall hold
office for a term that shall coincide with the remaining term of the class of
directors to which he or she is elected. A director elected to fill a vacancy
not resulting from an increase in the number of directors shall have the same
remaining term as that of his or her predecessor. Each director so chosen shall
hold office until a successor is duly elected and qualified or until his or her
earlier death, resignation or removal as herein provided. Whenever holders of
any class or classes of stock or series thereof are entitled by the provisions
of the certificate of incorporation to elect one or more directors, vacancies of
directorships pertaining to such class or classes or series may only be filled
by the affirmative vote of the majority of the total number of directors elected
by such class or classes or series thereof then in office, or by a sole
remaining director so elected. If no such directors or director remains, then
the vacancy or vacancies of directorships pertaining to such class or classes or
series shall be filled by the affirmative vote of the majority of the total
number of directors then in office, or by any sole remaining director.
SECTION 5. NOMINATIONS.
(a) Other than directors serving at the time these by-laws are
adopted, only persons who are nominated in accordance with the procedures set
forth in these by-laws shall be eligible to serve as directors. Nominations of
persons for election to the board of directors of the Corporation may be made at
a meeting of stockholders (i) by or at the direction of the board of directors
or (ii) by any stockholder of the Corporation who was a stockholder of record at
the time of giving of notice provided for in this by-law, who is entitled to
vote for the election of directors at the meeting and who shall have complied
with the notice procedures set forth below in Section 5(b) of this Article III.
(b) In order for a stockholder to nominate a person for election to
the board of directors of the Corporation at a meeting of stockholders, such
stockholder shall have delivered timely notice of such stockholder's intent to
make such nomination in writing to the secretary of
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the Corporation. To be timely, a stockholder's notice shall be delivered to or
mailed and received at the principal executive offices of the Corporation (i) in
the case of an annual meeting, not less than sixty (60) nor more than ninety
(90) 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
changed by more than thirty (30) days from such anniversary date, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth (10th) day following the earlier of the day on which
notice of the date of the meeting was mailed or public disclosure of the meeting
was made, and (ii) in the case of a special meeting at which directors are to be
elected, not later than the close of business on the tenth (10th) day following
the earlier of the day on which notice of the date of the meeting was mailed or
public disclosure of the meeting was made. Such stockholder's notice shall set
forth (i) as to each person whom the stockholder proposes to nominate for
election as a director at such meeting all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (ii) as to the stockholder giving the notice
(A) the name and address, as they appear on the Corporation's books, of such
stockholder and (B) the class and number of shares of the Corporation which are
beneficially owned by such stockholder and also which are owned of record by
such stockholder; and (iii) as to the beneficial owner, if any, on whose behalf
the nomination is made, (A) the name and address of such person and (B) the
class and number of shares of the Corporation which are beneficially owned by
such person. At the request of the board of directors, any person nominated by
the board of directors for election as a director shall furnish to the secretary
of the Corporation that information required to be set forth in a stockholder's
notice of nomination which pertains to the nominee.
(c) No person shall be eligible to serve as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 5 of Article III. The chairman of the meeting shall, if the facts
warrant, determine that a nomination was not made in accordance with the
procedures prescribed by this Section 5 of Article III, and if he or she should
so determine, he or she shall so declare to the meeting and the defective
nomination shall be disregarded. A stockholder seeking to nominate a person to
serve as a director must also comply with all applicable requirements of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder with respect to the matters set forth in this Section 5 of Article
III.
SECTION 6. ANNUAL MEETINGS. An annual meeting of the board of directors may
be held without other notice at such time and at such place as shall, from time
to time, be determined by resolution of the board.
SECTION 7. OTHER MEETINGS AND NOTICE. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board of directors. Special meetings of
the board of directors may be called by the chairman of the board or, upon the
written request of at least a majority of the directors then in office, by the
secretary of the Corporation on at least 24 hours notice to each director,
either personally, by telephone, by mail, by telegram, by telex, by facsimile or
by electronic transmission, and shall be
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deemed to have been given when communicated by telephone, when deposited in the
United States mail, when delivered to the telegraph company or transmitted by
telex, facsimile or electronic transmission, as the case may be.
SECTION 8. CHAIRMAN OF THE BOARD; QUORUM; REQUIRED VOTE AND ADJOURNMENT.
The board of directors shall elect, by the affirmative vote of the majority of
the total number of directors then in office, a chairman of the board, who shall
preside at all meetings of the stockholders and the board of directors at which
he or she is present. If the chairman of the board is not present at a meeting
of the stockholders or the board of directors, the chief executive officer (if
the chief executive officer is a director and is not also the chairman of the
board) shall preside at such meeting, and, if the chief executive officer is not
present at such meeting, a majority of the directors present at such meeting
shall elect one of their members to so preside. A majority of the total number
of directors then in office shall constitute a quorum for the transaction of
business. Unless by express provision of an applicable law, the Corporation's
certificate of incorporation or these by-laws a different vote is required, the
vote of a majority of directors present at a meeting at which a quorum is
present shall be the act of the board of directors. If a quorum shall not be
present at any meeting of the board of directors, the directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
SECTION 9. COMMITTEES. The board of directors may, by resolution passed by
a majority of the total number of directors then in office, designate one or
more committees, each committee to consist of one or more of the directors of
the Corporation, which to the extent provided in such resolution or these
by-laws shall have, and may exercise, the powers of the board of directors in
the management and affairs of the Corporation, except as otherwise limited by
law. 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. Such committee or committees shall have such name
or names 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 when required.
SECTION 10. COMMITTEE RULES. Each committee of the board of directors may
fix its own rules of procedure and shall hold its meetings as provided by such
rules, except as may otherwise be provided by a resolution of the board of
directors designating such committee. Unless otherwise provided in such a
resolution, the presence of at least a majority of the members of the committee
shall be necessary to constitute a quorum. Unless otherwise provided in such a
resolution, in the event that a member and that member's alternate, if
alternates are designated by the board of directors as provided in Section 9 of
this Article III, of such committee is or are absent or disqualified, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the board of directors to act at the meeting in place
of any such absent or disqualified member.
SECTION 11. COMMUNICATIONS EQUIPMENT. Members of the board of directors or
any committee thereof may participate in and act at any meeting of such board or
committee through the use of a conference telephone or other communications
equipment by means of which all
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persons participating in the meeting can hear and speak with each other, and
participation in the meeting pursuant to this Section 11 of Article III shall
constitute presence in person at the meeting.
SECTION 12. WAIVER OF NOTICE AND PRESUMPTION OF ASSENT. Any member of the
board of directors or any committee thereof who is present at a meeting shall be
conclusively presumed to have waived notice of such meeting except when such
member attends 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. Such member shall be conclusively presumed to have assented
to any action taken unless his or her dissent shall be entered in the minutes of
the meeting or unless his or her written dissent to such action shall be filed
with the person acting as the secretary of the meeting before the adjournment
thereof or shall be forwarded by registered mail to the secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to any member who voted in favor of such action.
SECTION 13. ACTION BY WRITTEN CONSENT. Unless otherwise restricted by the
certificate of incorporation, any action required or permitted to be taken at
any meeting of the board of directors, or of any committee thereof, may be taken
without a meeting if all members of the board or committee, as the case may be,
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board of directors or committee thereof.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the Corporation shall be elected by the
board of directors and may consist of a chairman of the board, chief executive
officer, president, one or more executive vice presidents or vice-presidents, a
chief operating officer, a chief financial officer, a secretary, a treasurer and
such other officers and assistant officers as may be deemed necessary or
desirable by the board of directors. Any number of offices may be held by the
same person. In its discretion, the board of directors may choose not to fill
any office for any period as it may deem advisable.
SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the Corporation
shall be elected annually by the board of directors at its first meeting held
after each annual meeting of stockholders or as soon thereafter as convenient.
Vacancies may be filled or new offices created and filled at any meeting of the
board of directors. Each officer shall hold office until a successor is duly
elected and qualified or until his or her earlier death, resignation or removal
as hereinafter provided.
SECTION 3. REMOVAL. Any officer or agent elected by the board of directors
may be removed by the board of directors at its discretion, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 4. VACANCIES. Any vacancy occurring in any office because of death,
resignation, removal, disqualification or otherwise, may be filled by the board
of directors.
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SECTION 5. COMPENSATION. Compensation of all officers shall be fixed by the
board of directors (or a committee thereof), and no officer shall be prevented
from receiving such compensation by virtue of his or her also being a director
of the Corporation.
SECTION 6. CHAIRMAN OF THE BOARD. The chairman of the board shall preside
at all meetings of the board of directors and stockholders and shall have such
other powers and perform such other duties as may be prescribed by the board of
directors or provided in these by-laws. The chairman of the board is authorized
to execute bonds, mortgages and other contracts requiring a seal, under the seal
of the Corporation, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the Corporation.
SECTION 7. CHIEF EXECUTIVE OFFICER. The chief executive officer shall have
the powers and perform the duties incident to that position. Subject to the
powers of the board of directors, he or she shall be in the general and active
charge of the entire business and affairs of the Corporation, and shall be its
chief policy-making officer. The chief executive officer is authorized to
execute bonds, mortgages and other contracts requiring a seal, under the seal of
the Corporation, except where required or permitted by law to be otherwise
signed and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent of
the Corporation. The chief executive officer shall, in the absence or disability
of the chairman of the board, act with all of the powers, perform all duties and
be subject to all the restrictions of the chairman of the board. The chief
executive officer shall have such other powers and perform such other duties as
may be prescribed by the chairman of the board or the board of directors or as
may be provided in these by-laws.
SECTION 8. THE PRESIDENT. The president of the Corporation, subject to the
powers of the board of directors, the chairman of the board and the chief
executive officer, shall have general charge of the business, affairs and
property of the Corporation, and control over its officers, agents and
employees; and shall see that all orders and resolutions of the board of
directors and the chief executive officer are carried into effect. The president
shall, in the absence or disability of the chief executive officer, act with all
of the powers and be subject to all the restrictions of the chief executive
officer. The president is authorized to execute bonds, mortgages and other
contracts requiring a seal, under the seal of the Corporation, except where
required or permitted by law to be otherwise signed and executed and except
where the signing and execution thereof shall be expressly delegated by the
board of directors to some other officer or agent of the Corporation. The
president shall have such other powers and perform such other duties as may be
prescribed by the chairman of the board, the chief executive officer or the
board of directors or as may be provided in these by-laws.
SECTION 9. CHIEF OPERATING OFFICER. The chief operating officer of the
Corporation, subject to the powers of the board of directors, the chairman of
the board, the chief executive officer and president, shall have general and
active management of the business of the Corporation; and shall see that all
orders and resolutions of the board of directors are carried into effect. The
chief operating officer shall have such other powers and perform such other
duties as
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may be prescribed by the chairman of the board, the chief executive officer and
president or the board of directors or as may be provided in these by-laws.
SECTION 10. CHIEF FINANCIAL OFFICER. The chief financial officer of the
Corporation shall, under the direction of the chairman of the board, the chief
executive officer and the president, be responsible for all financial and
accounting matters and for the direction of the offices of treasurer and
controller. The chief financial officer shall have such other powers and perform
such other duties as may be prescribed by the chairman of the board, the chief
executive officer or the board of directors or as may be provided in these
by-laws.
SECTION 11. VICE-PRESIDENTS. The vice-president, or if there shall be more
than one, the vice-presidents in the order determined by the board of directors
or the chairman of the board, shall, in the absence or disability of the
president, act with all of the powers and be subject to all the restrictions of
the president. The vice-presidents shall also perform such other duties and have
such other powers as the board of directors, the chairman of the board, the
chief executive officer, the president or these by-laws may, from time to time,
prescribe. The vice-presidents may also be designated as executive
vice-presidents or senior vice-presidents, as the board of directors may from
time to time prescribe.
SECTION 12. THE SECRETARY AND ASSISTANT SECRETARIES. The secretary shall
attend all meetings of the board of directors, all meetings of the committees
thereof and all meetings of the stockholders and record all the proceedings of
the meetings in a book or books to be kept for that purpose or shall ensure that
his or her designee attends each such meeting to act in such capacity. Under the
chairman of the board's supervision, the secretary shall give, or cause to be
given, all notices required to be given by these by-laws or by law; shall have
such powers and perform such duties as the board of directors, the chairman of
the board, the chief executive officer, the president or these by-laws may, from
time to time, prescribe; and shall have custody of the corporate seal of the
Corporation. The secretary, or an assistant secretary, shall have authority to
affix the corporate seal to any instrument requiring it and when so affixed, it
may be attested by his or her signature or by the signature of such assistant
secretary. The board of directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
or her signature. The assistant secretary, or if there be more than one, any of
the assistant secretaries in the order determined by the board of directors,
shall, in the absence or disability of the secretary, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as the board of directors, the chairman of the board, the
chief executive officer, the president, or secretary may, from time to time,
prescribe.
SECTION 13. THE TREASURER AND ASSISTANT TREASURER. The treasurer shall have
the custody of the corporate funds and securities; shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation;
shall deposit all monies and other valuable effects in the name and to the
credit of the Corporation as may be ordered by the chairman of the board, the
chief executive officer, the chief financial officer or the board of directors;
shall cause the funds of the Corporation to be disbursed when such disbursements
have been duly authorized, taking proper vouchers for such disbursements; and
shall render to the chairman of the board, the chief financial officer and the
board of directors, at its regular meeting or when the
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board of directors so requires, an account of the Corporation; shall have such
powers and perform such duties as the board of directors, the chairman of the
board, the chief executive officer, the president, the chief financial officer
or these by-laws may, from time to time, prescribe. The assistant treasurer, or
if there are more than one, the assistant treasurers in the order determined by
the board of directors shall, in the absence or disability of the treasurer,
perform the duties and exercise the powers of the treasurer. The assistant
treasurers shall perform such other duties and have such other powers as the
board of directors, the chairman of the board, the chief executive officer, the
president, the chief financial officer, treasurer or these by-laws may, from
time to time, prescribe.
SECTION 14. OTHER OFFICERS, ASSISTANT OFFICERS AND AGENT. Officers,
assistant officers and agents, if any, other than those whose duties are
provided for in these bylaws, shall have such authority and perform such duties
as may from time to time be prescribed by resolution of the board of directors.
SECTION 15. ABSENCE OR DISABILITY OF OFFICERS. In the case of the absence
or disability of any officer of the Corporation and of any person hereby
authorized to act in such officer's place during such officer's absence or
disability, the board of directors may by resolution delegate the powers and
duties of such officer to any other officer or to any director, or to any other
person selected by it.
ARTICLE V
INDEMNIFICATION OF OFFICERS, DIRECTORS AND OTHERS
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 otherwise involved (including
involvement as a witness) in any action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "proceeding"), by
reason of the fact that he or she is or was a director, officer or employee of
the Corporation or, while a director, officer or employee of the Corporation, is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plan (hereinafter, an "indemnitee"), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer or employee or in
any other capacity while serving as a director, officer or employee, 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
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA exercise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith and such indemnification shall continue as to
an indemnitee who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the indemnitee's heirs, executors and
administrators. The right to indemnification conferred in this Section 1 of
Article V 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 (hereinafter an "advance of
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expenses"); provided, however, that, if and to the extent that the Delaware
General Corporation Law requires, an advance of expenses incurred by an
indemnitee in his or her capacity as a director, officer or employee (and not in
any other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
this Section 1 of Article V or otherwise. The Corporation may, by action of its
board of directors, provide indemnification to agents of the Corporation with
the same scope and effect as the foregoing indemnification of directors,
officers and employees.
SECTION 2. PROCEDURE FOR INDEMNIFICATION. Any indemnification of a
director, officer or employee of the Corporation or advance of expenses under
Section 1 of this Article V shall be made promptly, and in any event within
forty-five (45) days (or, in the case of an advance of expenses, twenty (20)
days), upon the written request of the director, officer or employee. If a
determination by the Corporation that the director, officer or employee is
entitled to indemnification pursuant to this Article V is required, and the
Corporation fails to respond within sixty (60) days to a written request for
indemnity, the Corporation shall be deemed to have approved the request. If the
Corporation denies a written request for indemnification or advance of expenses,
in whole or in part, or if payment in full pursuant to such request is not made
within forty-five (45) days (or, in the case of an advance of expenses, twenty
(20) days), the right to indemnification or advances as granted by this Article
V shall be enforceable by the director, officer or employee in any court of
competent jurisdiction. Such person's costs and expenses incurred in connection
with successfully establishing his or her right to indemnification, in whole or
in part, in any such action shall also be indemnified by the Corporation. It
shall be a defense to any such action (other than an action brought to enforce a
claim for the advance of expenses where the undertaking required pursuant to
Section 1 of this Article V, if any, 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 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 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 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. The procedure for indemnification of agents for whom indemnification is
provided pursuant to Section 1 of this Article V shall be the same procedure set
forth in this Section 2 for directors, officers and employees, unless otherwise
set forth in the action of the board of directors providing indemnification for
such agent.
SECTION 3. SERVICE FOR SUBSIDIARIES. Any person serving as a director,
officer, employee or agent of a subsidiary shall be conclusively presumed to be
serving in such capacity at the request of the Corporation.
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SECTION 4. RELIANCE. Persons who after the date of the adoption of this
provision become or remain directors, officers or employees of the Corporation
or who, while a director, officer or employee of the Corporation, become or
remain a director, officer, employee or agent of a subsidiary, shall be
conclusively presumed to have relied on the rights to indemnity, advance of
expenses and other rights contained in this Article V in entering into or
continuing such service. The rights to indemnification and to the advance of
expenses conferred in this Article V shall apply to claims made against an
indemnitee arising out of acts or omissions which occurred or occur both prior
and subsequent to the adoption hereof.
SECTION 5. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to
the advance of expenses conferred in this Article V shall not be exclusive of
any other right which any person may have or hereafter acquire under this
Certificate of Incorporation or under any statute, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
SECTION 6. INSURANCE. The Corporation may purchase and maintain insurance
on its own behalf and on behalf of any person who is or was a director, officer,
employee or agent of the Corporation or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against him or her and incurred by him or her in any
such capacity, whether or not the Corporation would have the power to indemnify
such person against such expenses, liability or loss under the Delaware General
Corporation Law.
ARTICLE VI
CERTIFICATES OF STOCK
SECTION 1. FORM. Every holder of stock in the Corporation shall be entitled
to have a certificate, signed by, or in the name of the Corporation by the
chairman of the board, the president or a vice-president and the secretary,
treasurer, an assistant secretary or an assistant treasurer of the Corporation,
certifying the number of shares owned by such holder in the Corporation. If such
a certificate is countersigned (1) by a transfer agent or an assistant transfer
agent other than the Corporation or its employee or (2) by a registrar, other
than the Corporation or its employee, the signature of any such chairman of the
board, president, vice-president, secretary, treasurer, assistant secretary or
assistant treasurer may be facsimiles. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation whether because of death, resignation or otherwise before such
certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be issued and delivered as though
the person or persons who signed such certificate or certificates or whose
facsimile signature or signatures have been used thereon had not ceased to be
such officer or officers of the Corporation. All certificates for shares shall
be consecutively numbered or otherwise identified. The name of the person to
whom the shares represented thereby are issued, with the number of shares and
date of issue, shall be entered on the books of the Corporation. Shares of stock
of the Corporation shall only be transferred on the books of the Corporation by
the holder of record thereof or by such holder's attorney duly authorized in
writing, upon
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surrender to the Corporation of the certificate or certificates for such shares
endorsed by the appropriate person or persons, with such evidence of the
authenticity of such endorsement, transfer, authorization, and other matters as
the Corporation may reasonably require, and accompanied by all necessary stock
transfer stamps, if any. In that event, it shall be the duty of the Corporation
to issue a new certificate to the person entitled thereto, cancel the old
certificate or certificates, and record the transaction on its books. The board
of directors may appoint a bank, trust company or other entity organized under
the laws of the United States or any state thereof to act as its transfer agent
or registrar, or both in connection with the transfer of any class or series of
securities of the Corporation.
SECTION 2. LOST CERTIFICATES. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates previously issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen, or destroyed. When
authorizing such issue of a new certificate or certificates, the Corporation
may, in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost, stolen, or destroyed certificate or
certificates, or his or her legal representative, to give the Corporation a bond
sufficient to indemnify the Corporation against any claim that may be made
against the Corporation on account of the loss, theft or destruction of any such
certificate or certificates or the issuance of such new certificate or
certificates.
SECTION 3. FIXING A RECORD DATE FOR STOCKHOLDER MEETINGS. 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, 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 shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting. If no record date is fixed by the board of
directors, the record date for determining stockholders entitled to notice of or
to vote at a meeting of stockholders shall be at the close of business on the
next day 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. 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 4. FIXING A RECORD DATE FOR ACTION BY WRITTEN CONSENT. In order
that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting in accordance with Section 14 of
Article II hereof, the board of directors may fix a record date, which record
date shall not precede the date upon which the resolution fixing the record date
is adopted by the board of directors, and which date shall not be more than ten
(10) days after the date upon which the resolution fixing the record date is
adopted by the board of directors. If no record date has been fixed by the board
of directors, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting, when no prior action by the
board of directors is required by law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in the State
of Delaware, its principal place of business or an officer or agent of the
Corporation having custody of the book in which
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proceedings of meetings of stockholders are recorded. Delivery made to a
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the board of
directors and prior action by the board of directors is required by law, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting shall be at the close of business on the day on
which the board of directors adopts the resolution taking such prior action.
SECTION 5. FIXING A RECORD DATE FOR OTHER PURPOSES. In order that the
Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment or any rights or the stockholders
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, and which record date shall be
not more than sixty (60) days prior to such action. If no record date is fixed,
the record date for determining stockholders for any such purpose shall be at
the close of business on the day on which the board of directors adopts the
resolution relating thereto.
SECTION 6. REGISTERED STOCKHOLDERS. Prior to the surrender to the
Corporation of the certificate or certificates for a share or shares of stock
with a request to record the transfer of such share or shares, the Corporation
may treat the registered owner as the person entitled to receive dividends, to
vote, to receive notifications, and otherwise to exercise all the rights and
powers of an owner. The Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof.
SECTION 7. SUBSCRIPTIONS FOR STOCK. Unless otherwise provided for in the
subscription agreement, subscriptions for shares shall be paid in full at such
time, or in such installments and at such times, as shall be determined by the
board of directors. Any call made by the board of directors for payment on
subscriptions shall be uniform as to all shares of the same class or as to all
shares of the same series. In case of default in the payment of any installment
or call when such payment is due, the Corporation may proceed to collect the
amount due in the same manner as any debt due the Corporation.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the certificate of incorporation, if any, may be
declared by the board of directors at any regular or special meeting, in
accordance with applicable law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the certificate of
incorporation. 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
directors from time to time, in their 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 any other purpose
and the directors may modify or abolish any such reserve in the manner in which
it was created.
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SECTION 2. CHECKS, DRAFTS OR ORDERS. All checks, drafts, or other orders
for the payment of money by or to the Corporation and all notes and other
evidences of indebtedness issued in the name of the Corporation shall be signed
by such officer or officers, agent or agents of the Corporation, and in such
manner, as shall be determined by resolution of the board of directors or a duly
authorized committee thereof.
SECTION 3. CONTRACTS. In addition to the powers otherwise granted to
officers pursuant to Article IV hereof, the board of directors may authorize any
officer or officers, or any agent or agents, of the Corporation to enter into
any contract or to execute and deliver any instrument in the name of and on
behalf of; the Corporation, and such authority may be general or confined to
specific instances.
SECTION 4. LOANS. The Corporation may lend money to, or guarantee any
obligation of, or otherwise assist any officer or other employee of the
Corporation or of its subsidiaries, including any officer or employee who is a
director of the Corporation or its subsidiaries, whenever, in the judgment of
the directors, such loan, guaranty or assistance may reasonably be expected to
benefit the Corporation. The loan, guaranty or other assistance may be with or
without interest, and may be unsecured, or secured in such manner as the board
of directors shall approve, including, without limitation, a pledge of shares of
stock of the Corporation. Nothing in this section contained shall be deemed to
deny, limit or restrict the powers of guaranty or warranty of the Corporation at
common law or under any statute.
SECTION 5. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the board of directors.
SECTION 6. CORPORATE SEAL. The board of directors may provide a corporate
seal which shall have inscribed thereon the name of the Corporation and such
other information as the board of directors may deem necessary or convenient.
The seal may be used by causing it or a facsimile thereof to be impressed or
affixed or reproduced or otherwise.
SECTION 7. VOTING SECURITIES OWNED BV CORPORATION. Voting securities in any
other corporation held by the Corporation shall be voted by the chairman of the
board, the chief executive officer, the president or a vice-president, unless
the board of directors specifically confers authority to vote with respect
thereto, which authority may be general or confined to specific instances, upon
some other person or officer. Any person authorized to vote securities shall
have the power to appoint proxies, with general power of substitution.
Section 8. Inspection of Books and Records. Any stockholder of record,
in person or by attorney or other agent, shall, upon written demand under oath
stating the purpose thereof, have the right during the usual hours for business
to inspect for any proper purpose, and to make copies and extracts from: (1) the
Corporation's stock ledger, a list of its stockholders, and its other books and
records and (2) a subsidiary's books and records, to the extent that: (i) the
Corporation has actual possession and control of such records of such
subsidiary; or (ii) the Corporation could obtain such records through the
exercise of control over such subsidiary, provided that as of the date of the
making of the demand: (x) the stockholder inspection of such
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books and records of the subsidiary would not constitute a breach of an
agreement between the Corporation or the subsidiary and a person or persons not
affiliated with the Corporation and (y) the subsidiary would not have the right
under the law applicable to it to deny the Corporation access to such books and
records upon demand by the Corporation.
A proper purpose shall mean any 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. The
Corporation shall have a reasonable amount of time to respond to any such
request.
SECTION 9. SECTION HEADINGS. Section headings in these by-laws are for
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
SECTION 10. INCONSISTENT PROVISIONS. In the event that any provision of
these by-laws is or becomes inconsistent with any provision of the certificate
of incorporation, the Delaware General Corporation Law or any other applicable
law, the provision of these by-laws shall not be given any effect to the extent
of such inconsistency but shall otherwise be given full force and effect.
ARTICLE VIII
AMENDMENTS
These by-laws may be amended, altered, or repealed and new by-laws adopted
at any meeting of the board of directors by the affirmative vote of the majority
of the total number of directors then in office. The fact that the power to
adopt, amend, alter, or repeal the by-laws has been conferred upon the board of
directors shall not divest the stockholders of such powers as set forth in the
certificate of incorporation; provided, that Sections 2, 12 and 14 of Article
II, Sections 2, 3, 4, and 5 of Article III, Article V and this Article VIII of
these by-laws shall not be altered, amended or repealed by, and no provision
inconsistent therewith shall be adopted by, the stockholders without the
affirmative vote of the holders of at least two-thirds (?) of the issued and
outstanding voting stock of the Corporation entitled to vote generally for
election of directors represented at a meeting of stockholders at which a quorum
is present (as provided in these by-laws).
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