EXHIBIT 3.2
BYLAWS
OF
CARREKER-ANTINORI, INC.
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office shall be
located in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. OTHER OFFICES. The corporation also may 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 as the business of the
corporation may require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
Section 1. PLACE OF MEETINGS. All meetings of the stockholders for
the election of directors or for any other proper purpose shall be held at
such place either within or without the State of Delaware as the Board of
Directors may from time to time designate, as stated in the notice of such
meeting or a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETING. An annual meeting of the stockholders
shall be held at such time and date as the Board of Directors may determine.
At such meeting the stockholders entitled to vote shall elect a Board of
Directors and may transact such other business as properly may be brought
before the meeting.
Section 3. SPECIAL MEETING. Special meetings of the stockholders
may be called only by the Chairman of the Board of Directors, the Chief
Executive Officer or a majority of the members of the Board of Directors then
in office.
Section 4. NOTICE OF ANNUAL OR SPECIAL MEETING. Written or printed
notice stating the location, date and hour of the meeting and, in case of a
special meeting, the purpose or purposes for which the meeting is called,
shall be delivered not less than ten (10) nor more than sixty (60) days
before the date of the meeting, either personally or by mail, by or at the
direction of the Chairman of the Board, the President, the Secretary, or the
officer or person calling the meeting, to each stockholder of record entitled
to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail, addressed to the
stockholder at his address as it appears on the stock transfer books of the
corporation, with postage thereon prepaid.
Section 5. BUSINESS AT SPECIAL MEETING. The business transacted at
any special meeting of the stockholders shall be limited to the purposes
stated in the notice thereof.
Section 6. QUORUM OF STOCKHOLDERS. Unless otherwise provided in the
Certificate of Incorporation or applicable law, the holders of a majority of
the shares entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of the stockholders. If, however, a quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders present in person or represented by proxy shall have power to
adjourn the meeting from time to time, without notice other than announcement
of location, date, and hour of the adjourned meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall be
present or represented, any business may be transacted which might have been
transacted at the meeting as originally notified, unless the adjournment is
for more than thirty (30) days or a new record date is fixed for the
adjourned meeting, in which case notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at such meeting. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, and the subsequent withdrawal of any stockholder
or the refusal of any stockholder to vote shall not affect the presence of
quorum at the meeting.
Section 7. ACT OF STOCKHOLDERS' MEETING. Except with respect to the
election of directors, the vote of the holders of a majority of the shares
entitled to vote and represented in person or by proxy at a meeting at which
a quorum is present shall be the act of the stockholders' meeting, unless the
vote of a greater number is required by law or the Certificate of
Incorporation. Unless otherwise provided in the Certificate of Incorporation,
directors shall be elected by a plurality of the votes cast by the holders of
shares entitled to vote in the election of directors at a meeting of
stockholders at which a quorum is present. Where a separate vote by a class
or classes is required, a majority of the outstanding shares of such class or
classes, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to that vote on that matter and the
affirmative vote of the majority of shares of such class or classes present
in person or represented by proxy at the meeting shall be the act of such
class.
Section 8. VOTING OF SHARES. Each outstanding share shall be
entitled to one vote on each matter submitted to a vote at a meeting of the
stockholders, except to the extent that the voting rights of the shares of
any class are limited or denied by the Certificate of Incorporation or by a
resolution of the Board of Directors designating a series of preferred stock.
At each election for directors, every stockholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected
and for whose election he has the right to vote. Unless permitted by the
Certificate of Incorporation, no stockholder shall be entitled to cumulate
his votes by giving one candidate as many votes as the number of such
directors to be elected multiplied by the number of shares owned by such
stockholder or by distributing such votes on the same principle among any
number of such candidates.
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Section 9. PROXIES. At any meeting of the stockholders, each
stockholder having the right to vote shall be entitled to vote either in
person or by proxy executed in writing by the stockholder or by his duly
authorized attorney-in-fact. No proxy shall be valid after three (3) years
from its date of execution unless otherwise provided in the proxy. Each
proxy shall be revocable unless expressly provided therein to be irrevocable
and the proxy is coupled with an interest or otherwise made irrevocable by
law.
Section 10. VOTING LIST. The officer or agent having charge of the
stock ledger of the corporation shall make, at least ten (10) days before
each meeting of the stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and number of shares held by each,
which list shall be maintained, for a period of ten (10) days prior to such
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, and shall be subject
to inspection by any stockholder at any time during ordinary business hours.
Such list shall also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any stockholder during the
whole time of the meeting. The original stock ledger shall be the only
evidence as to who are the stockholders entitled to examine such list or
transfer books of the corporation or to vote at any such meeting of
stockholders.
Section 11. ACTION BY WRITTEN CONSENT WITHOUT A MEETING. Any action
required or permitted to be taken at any annual or special meeting of the
stockholders may only be taken upon the vote of the stockholders at an annual
or special meeting called and may not be taken by written consent of the
stockholders.
Section 12. VOTING PROCEDURES; JUDGES OF ELECTION. Except as
otherwise provided by applicable law, the Certificate of Incorporation, or
these Bylaws, or as directed by the chairman of the meeting, the election of
directors and the vote upon any other matter need not be by written ballot.
In advance of any meeting of stockholders, the Board of Directors may appoint
one or more judges of election, who need not be stockholders, to act at such
meeting or any adjournment thereof. If judges of election are not so
appointed, the chairman of any such meeting may, and, upon the demand of any
stockholder entitled to vote or such stockholder's proxy, at the meeting and
before voting begins, shall appoint judges of election. In the case of
judges appointed upon demand of a stockholder, the number of judges shall be
either one (1) or three (3), as determined by the stockholders present or
represented by proxy, entitled to cast a majority of votes that all
stockholders present or so represented are entitled to cast thereon. No
person who is a candidate for office shall act as a judge. In case any person
appointed as judge fails to appear or refuses to act, the vacancy may be
filled by appointment made by the Board of Directors in advance of the
convening of the meeting, or at the meeting by the chairman of the meeting.
Except as provided in the Certificate of Incorporation, if judges of
election are appointed as aforesaid, they shall (a) determine the number of
shares outstanding and the voting power of
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each, the shares represented at the meeting, the existence of a quorum, and
the authenticity, validity, and effect of proxies; (b) receive votes or
ballots; (c) hear and determine all challenges and questions in any way
arising in connection with the right to vote; (d) count and tabulate all
votes; (e) determine the results of the election or other vote; and (f) do
such acts as may be proper to conduct the election or vote with fairness to
all stockholders. If there be three (3) or more judges of election, the
decision, act, or certificate of a majority shall be effective in all
respects as the decision, act, or certificate of all.
On request of the chairman of the meeting or of any stockholder entitled
to vote or such stockholder's proxy, the judges shall make a report in
writing of any challenge, question, or other matter determined by them, and
shall execute a certificate of any fact found by them.
Section 13. ORGANIZATION. At every meeting of the stockholders, the
Chairman of the Board, or in the case of a vacancy in the office or absence
of the Chairman of the Board, one of the following persons present in the
order stated: the Vice Chairmen in their order of rank, the President, the
Vice-Presidents in their order of rank, a chairman designated by the Board of
Directors, or a chairman chosen by the stockholders entitled to cast
two-thirds (2/3) of the votes that all stockholders present in person or by
proxy are entitled to cast, shall act as chairman of the meeting, and the
Secretary, or, in such person's absence, an Assistant Secretary, if any, or
any person appointed by the chairman of the meeting, shall act as secretary
of the meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 1. POWERS. The business and affairs of the corporation
shall be managed by or under the direction of its Board of Directors, which
may exercise all such powers of the corporation and do all such lawful acts
and things as are not by statute or by the Certificate of Incorporation or by
these Bylaws directed or required to be exercised and done by the
stockholders.
Section 2. NUMBER OF DIRECTORS. The number of directors shall
initially consist of eight (8) directors. At or prior to the first meeting
of the Board of Directors after the organizational meeting of the Board of
Directors and thereafter, the number of directors shall be at least one (1)
but not more than twenty-five (25) members as determined from time to time in
accordance with these Bylaws by resolution of the Board of Directors, but no
decrease in the number of directors shall have the effect of shortening the
term of any incumbent director.
Section 3. ELECTION AND TERM. Subject to the rights, if any, of any
series of Preferred Stock then outstanding, the directors shall be divided
into three classes, designated Class I, Class II and Class III. The number
of directors in each class shall be the whole number contained in the
quotient arrived at by dividing the authorized number of directors by three,
and if a fraction
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is also contained in such quotient then if such fraction is one-third (1/3)
the extra director shall be a member of Class III and if the fraction is
two-thirds (2/3) then one of the extra directors shall be a member of Class
III and the other shall be a member of Class II. The terms of office of the
Board of Directors are divided into three classes: Class I, which consists
of John D. Carreker, Jr. and Larry Peck, expires at the annual meeting of
stockholders to be held in 1999; Class II, which consists of Ronald R.
Antinori, James L. Fischer and Richard R. Lee, Jr. will expire at the annual
meeting of stockholders to be held in 2000; and Class III, which consists of
James Carreker, Richard L. Linting and David K. Sias, will expire at the
annual meeting of stockholders to be held in 2001. At each annual meeting of
stockholders beginning with the 1999 annual meeting, the successors to
directors whose terms then expire will be elected to serve from the time of
their election and qualification until the third annual meeting following
election and until their successors have been duly elected and qualified, or
until their earlier resignation or removal. The officers of the Company are
appointed by and serve at the discretion of the Board of Directors.
Section 4. VACANCIES. Any vacancy occurring in the Board of
Directors for any reason other than an increase in the number of directors
shall be filled by the affirmative vote of a majority of the remaining
directors then in office, though less than a quorum of the Board of
Directors. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office. Any directorship to be filled by
reason of an increase in the number of directors may be filled by the
affirmative vote of a majority of the directors then in office. A director
elected to fill a newly created directorship shall hold office until his
successor is elected and qualified or until his death, resignation or removal.
Notwithstanding the preceding provisions of this Section 4 of the
Article III, unless otherwise provided in the Certificate of Incorporation or
these Bylaws, when one (1) or more directors shall resign from the Board of
Directors effective at a future date, a majority of the directors then in
office, including those who 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 4 in the filling of other vacancies.
Notwithstanding the preceding provisions of this Section 4, whenever the
holders of any class or series of shares are entitled to elect one or more
directors by the provisions of the Certificate of Incorporation, any
vacancies in such directorships and any newly created directorships of such
class or series to be filled by reason of an increase in the number of such
directors may be filled by the affirmative vote of a majority of the
directors elected by such class or series then in office or by a sole
remaining director so elected.
Section 5. REMOVAL. At any meeting of stockholders called expressly
for the purpose of removing a director or directors, any director or the
entire Board of Directors may be removed, only for cause, by a vote of the
holders of two-thirds of the shares then entitled to vote at an election of
directors.
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Section 6. RESIGNATIONS. Any director of the Corporation may resign
at any time by giving written notice to the Chairman of the Board, the
President, or the Secretary of the Corporation. Such resignation shall take
effect at the date of the receipt of such notice or at any later time
specified therein and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section 7. ORGANIZATION. At every meeting of the Board of
Directors, the Chairman of the Board, or in the case of a vacancy in the
office or absence of the Chairman of the Board, one of the following offices
present in the order stated: the President, the Vice Presidents in their
order of rank, or a chairman chosen by the affirmative vote of the directors
holding two-thirds (2/3) of the votes of the Board of Directors present,
shall act as chairman of the meeting and the Secretary, or, in the absence of
the Secretary, an Assistant Secretary, if any, or any other person appointed
by the chairman of the meting, shall act as secretary of the meeting.
Section 8. COMPENSATION OF DIRECTORS. As specifically prescribed
from time to time by resolution of the Board of Directors, the directors of
the corporation may be paid their expenses of attendance at each meeting of
the Board and may be paid a fixed sum for attendance at each meeting of the
Board or a stated salary in their capacity as directors. This provision
shall not preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing
committees may be allowed like compensation for attending committee meetings.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. FIRST MEETING. The first meeting of each newly elected
Board of Directors shall be held immediately following the annual meeting of
the stockholders and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting, provided
a quorum shall be present.
Section 2. REGULAR MEETINGS. Regular meetings of the Board of
Directors may be held with or without notice at such time and at such place
either within or without the State of Delaware as from time to time shall be
prescribed by the Board of Directors.
Section 3. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer or by a majority of the Board of Directors. Written notice of
special meetings of the Board of Directors shall be given to each director at
least twenty-four (24) hours before the time of the meeting.
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Section 4. BUSINESS AT REGULAR OR SPECIAL MEETING. Neither the
business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
Section 5. QUORUM OF DIRECTORS. A majority of the Board of
Directors shall constitute a quorum for the transaction of business, unless a
greater number is required by law or the Certificate of Incorporation. A
quorum once established, shall not be broken by the withdrawal of enough
directors to leave less than a quorum and the directors present may continue
to transact business until adjournment. 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 6. ACT OF DIRECTORS' MEETING. The act of a majority of the
directors present at a meeting at which a quorum is present shall be the act
of the Board of Directors, unless the act of a greater number is required by
law, the Certificate of Incorporation or these Bylaws.
Section 7. ACTION BY UNANIMOUS WRITTEN CONSENT WITHOUT A MEETING.
Any action required or permitted to be taken at a meeting of the Board of
Directors under the provisions of any applicable law, the Certificate of
Incorporation or these Bylaws may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by all members of the
Board of Directors, and such consent is filed with the minutes of proceedings
of the Board of Directors. Such consent shall have the same force and effect
as a unanimous vote of the Board of Directors.
Section 8. CONFERENCE TELEPHONE MEETINGS. Subject to the provisions
required or permitted for notice of meetings, unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, members of the Board of
Directors or members of any committee designated by such Board of Directors
may participate in and hold a meeting of such Board of Directors or committee
by conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business on the ground that the meeting is not lawfully called or
convened.
Section 9. INTERESTED DIRECTORS. No contract or transaction between
the corporation and one or more of its directors or officers, or between the
corporation and any other corporation, partnership, association, or other
organization in which one (1) or more of the corporation's directors or
officers or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof
that authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
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(a) The material facts as to his 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 vote of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum; or
(b) The material facts as to his 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
(c) The contract or transaction is fair as to the corporation as of
the time it is authorized, approved, or ratified by the Board of Directors,
a committee thereof, or the 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 that
authorizes the contract or transaction.
ARTICLE V
COMMITTEES
The Board of Directors may designate one or more committees, each
committee to consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of
a committee, the member or members 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 the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution of the Board of
Directors, or in these Bylaws, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the corporation, and may authorize the seal of the corporation to
be affixed to all papers which may require it; provided that no such
committee shall have the power or authority in reference to the following
matter: (i) approving or adopting, or recommending to the stockholders, any
action or matter expressly required by law to be submitted to stockholders
for approval or (ii) adopting, amendment or repealing any bylaw of the
corporation.
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ARTICLE VI
NOTICES
Section 1. METHODS OF GIVING NOTICE. Whenever any notice is
required to be given to any stockholder or director under the provisions of
any law, the Certificate of Incorporation or these Bylaws, it shall be given
in writing and delivered personally or mailed to such stockholder or director
at such address as appears on the books of the corporation, and such notice
shall be deemed to be given at the time the same shall be deposited in the
United States mail with sufficient postage thereon prepaid. Notice to
directors may also be given by telegram, telex, telecopy or similar means of
visual data transmission, and notice given by any of such means shall be
deemed to be delivered when transmitted for delivery to the recipient.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be
given to any stockholder or director under the provisions of any law, the
Certificate of Incorporation or these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of
such notice.
Section 3. ATTENDANCE AS WAIVER. Attendance of a stockholder or
director at a meeting shall constitute a waiver of notice of such meeting,
except where a stockholder or director attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of
any business on the ground that the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, a
meeting need be specified in any written waiver unless required by the
Certificate of Incorporation or these Bylaws.
ARTICLE VII
OFFICERS
Section 1. EXECUTIVE OFFICERS. The officers of the corporation
shall consist of a President and a Secretary, and may also include one or
more Vice Presidents, a Treasurer, and such other officers as are provided
for in this Article or by resolution of the Board of Directors. Any two (2)
or more offices may be held by the same person. The Board of Directors shall
also elect, from among the members of the Board, a Chairman of the Board, and
may elect one or more Vice Chairmen of the Board, each of which shall be
deemed to be an officer of the Corporation.
Section 2. ELECTION AND QUALIFICATION. The Board of Directors, at
its first meeting held immediately after each annual meeting of stockholders,
shall choose a President and a Secretary. The Board of Directors also may
elect one or more Vice Presidents, a Treasurer, and such other officers and
agents, including assistant officers and agents as may be deemed necessary,
who shall
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hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the Board of
Directors.
Section 3. SALARIES. The compensation of all officers and agents of
the corporation shall be determined by the Board of Directors.
Section 4. TERM, REMOVAL AND VACANCIES. Each officer of the
corporation shall hold office until his successor is chosen and qualified or
until his death, resignation, or removal. Any officer may resign at any time
upon giving written notice to the corporation. Any officer or agent or
member of any committee elected or appointed by the Board of Directors may be
removed by the Board of Directors with or without cause, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself
create contract rights. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise shall be filled by
the Board of Directors.
Section 5. CHAIRMAN OF THE BOARD. The Chairman of the Board shall
be elected from among the members of the Board of Directors. The Chairman of
the Board shall counsel with and advise the President and perform such other
duties as may be from time to time assigned to the Chairman by the Board of
Directors. Except as otherwise provided by resolution of the Board, the
Chairman of the Board shall be ex-officio a member of all committees of the
Board.
Section 6. VICE CHAIRMAN OF THE BOARD. The Vice Chairmen of the
Board shall perform the duties of the Chairman of the Board in the Chairman's
absence (in their order of rank) and such other duties as may from time to
time be assigned to them by the Board of Directors, the Chairman of the
Board, or the President.
Section 7. PRESIDENT. The President shall perform all of the duties
usually incident to such office, and such other duties as may from time to
time be assigned to the President by the Board of Directors. In the absence
of the Chairman of the Board and any Vice Chairmen of the Board, the
President shall preside at all meetings of the stockholders and of the Board
of Directors.
Section 8. VICE PRESIDENT. Each Vice President shall perform all
such duties as from time to time may be assigned to him or her by the Board
of Directors, the Chairman of the Board or the Chief Executive Officer. At
the request of the President or in his or her absence or in the event of his
or her inability or refusal to act, the Vice President, or if there shall be
more than one, the Vice Presidents in order determined by the Board of
Directors (or if there shall be no such determination, then the Vice
Presidents in the order of their election), shall perform the duties of the
President, and, when so acting, shall have the powers of and be subject to
the restrictions placed upon the President in respect of the performance of
such duties.
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Section 9. SECRETARY. The Secretary of in the Secretary's absence
the Assistant Secretary; (i) shall keep or cause to be kept in one or more
books provided for the purpose, the minutes of all meetings of the Board of
Directors, the committees of the Board of Directors and the stockholders;
(ii) shall ensure that all notices are duly given in accordance with the
provisions of these Bylaws and as required by law; (iii) shall be the
custodian of the records and the seal of the corporation and affix and attest
to seal of all certificates for shares of the corporation (unless the seal of
the corporation on such certificates shall be a facsimile, as hereinafter
provided) and affix and attest the seal to all other documents to be executed
on behalf of the corporation under its seal; (iv) shall ensure that the
books, reports, statements certificates and other documents and records
required by law to be kept and filed are properly kept and filed; and (v)
shall perform all duties incident to the office of Secretary and such other
duties as from time to time may be assigned to him or her by the Board of
Directors.
Section 10. ASSISTANT SECRETARIES. Unless otherwise determined by
the Board of Directors, the Assistant Secretaries, in the order of their
seniority as such seniority may from time to time be designated by the Board
of Directors, shall perform the duties and exercise the powers of the
Secretary in the absence or disability of the Secretary. They shall perform
such other duties and have such other powers as the Board of Directors may
from time to time prescribe.
Section 11. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit
of the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered
by the Board of Directors, taking proper vouchers for such disbursements, and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 12. ASSISTANT TREASURER. Unless otherwise determined by the
Board of Directors, the Assistant Treasurer shall perform the duties and
exercise the powers of the Treasurer in the absence or disability of the
Treasurer. He shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
Section 13. OFFICERS' BOND. If required by the Board of Directors,
any officer so required shall give the corporation a bond (which shall be
renewed as the Board of Directors may require) in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors for the
faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal
from office, of any and all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the
corporation.
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ARTICLE VIII
CERTIFICATES FOR SHARES
Section 1. CERTIFICATES REPRESENTING SHARES. The corporation shall
deliver certificates representing all shares to which stockholders are
entitled. Such certificates shall be numbered and shall be entered in the
books of the corporation as they are issued, and shall be signed by the
Chairman or Vice Chairman of the Board of Directors, the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of the corporation, and may be sealed with the seal
of the corporation or a facsimile thereof. Any or all signatures on the
certificate may be a facsimile. In case any officer who has signed or whose
facsimile signature has been placed upon such certificate shall have ceased
to be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
its issuance. If the corporation is authorized to issue shares of more than
one class, there shall be set forth upon the face or back of the certificate
a statement that the corporation will furnish to any stockholder upon request
and without charge a full statement of all of the powers, designations,
preferences, limitations and relative, participating, optional, or other
special rights of the shares of each class authorized to be issued and the
qualifications, limitations or restrictions of such preferences and/or rights
and, if the corporation is authorized to issue any preferred or special class
in series, the variations in the relative rights and preferences between the
shares of each such series so far as the same have been fixed and determined
and the authority of the Board of Directors to fix and determine the relative
rights and preferences of subsequent series. Each certificate representing
shares shall state upon the face thereof that the corporation is organized
under the laws of the State of Delaware, the name of the person to whom
issued, the number and the class and the designation of the series, if any,
which such certificate represents and the par value of each share represented
by such certificate or a statement that the shares are without par value. No
certificate shall be issued for any share until the consideration therefor
has been fully paid.
Section 2. RESTRICTION ON TRANSFER OF SHARES. If any restriction on
the transfer, or registration of the transfer, of shares shall be imposed or
agreed to by the corporation, as permitted by law, the Certificate of
Incorporation, or the Bylaws, such restriction shall be noted conspicuously
on each certificate representing shares in accordance with applicable law.
Section 3. VOTING AGREEMENTS. A written counterpart of any voting
agreement entered into among any number of stockholders of the corporation,
or any number of stockholders of the corporation and the corporation itself,
for the purpose of providing that shares of the corporation shall be voted in
the manner prescribed in the agreement shall be deposited with the
corporation at its registered office in Delaware and shall be subject to the
inspection by any stockholder of the corporation or any beneficiary of the
agreement daily during business hours. In addition, certificates of stock or
uncertificated stock shall be issued to the person or persons, or corporation
or corporations authorized to act as trustee for purposes of vesting in such
person or persons, corporation or corporations, the right to vote such
shares, to represent any stock of an original
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issue so deposited with him or them, and any certificates of stock or
uncertificated stock so transferred to the voting trustee or trustees shall
be surrendered and cancelled and new certificates or uncertificated stock
shall be issued therefore to the voting trustee or trustees. In the
certificate so issued, if any, it shall be stated that it is issued pursuant
to such agreement, and that fact shall also be stated in the stock ledger of
the corporation.
Section 4. TRANSFER OF SHARES. Subject to the provisions of this
Article, 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, assignment 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 upon
its books.
Section 5. TRANSFER AGENTS AND REGISTRARS. The Board of Directors
may appoint, or authorize any officer or officers to appoint, one or more
transfer agents and one or more registrars.
Section 6. REGULATIONS. The Board of Directors may make such
additional rules and regulations, not inconsistent with these By-Laws, as it
may deem expedient concerning the issue, transfer and registration of
certificates for shares of stock of the corporation.
Section 7. LOST, STOLEN OR DESTROYED CERTIFICATE. The Board of
Directors may direct a new certificate or certificates to be issued in place
of any certificate or certificates theretofore issued by the corporation
alleged to have been lost, stolen or destroyed upon the making of an
affidavit of that fact by the person claiming the certificate to be lost,
stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors, in its discretion and as a condition
precedent to the issuance thereof, may require the owner of such lost, stolen
or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and/or to give the
corporation a bond in such sum as it may direct to indemnify the corporation
against any claim that may be made against the corporation with respect to
the certificate alleged to have been lost, stolen or destroyed or the
issuance of such new certificate.
Section 8. CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE. For
the purpose of determining stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or entitled to
receive payment of any dividend or other distribution, or in order to make a
determination of stockholders for any other proper purpose (other than
determining stockholders entitled to consent to action taken by stockholders
that is proposed to be taken without a meeting of stockholders), the Board of
Directors may fix a date as the record date for any such determination of
stockholders, such date to not precede the date of adoption of the resolution
fixing the record date, and such date to be not more than sixty (60) days,
and, in case of a meeting of stockholders, not less than ten (10) days, prior
to the date on which the particular action requiring such determination of
stockholders is to be taken. If no record date is fixed for the
determination of stockholders entitled to notice of or to vote at a meeting
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of stockholders, or stockholders entitled to receive payment of a dividend or
other distribution, or for any other proper purpose, the close of business on
the day next preceding the date on which notice of the meeting is mailed or
if notice is waived, the close of business on the day next preceding the day
on which the meeting is held or the date on which the resolution of the Board
of Directors declaring such dividend or relating to such other proper purpose
is adopted, as the case may be, shall be the record date for such
determination of stockholders. When a determination of stockholders entitled
to vote at any meeting of stockholders has been made as provided in this
Section 6, such determination shall apply to any adjournment thereof;
provided that the Board of Directors may fix a new record date for the
adjourned meeting. Whenever action by stockholders is proposed to be taken
by consent in writing without a meeting of stockholders, the Board of
Directors may fix a record date for the purpose of determining stockholders
entitled to consent to that action, which record date shall not precede, and
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 and the prior action
of the Board of Directors is not required by law, the record date for
determining stockholders entitled to consent to action in writing without a
meeting 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, its principal place of
business, or an officer or agent of the corporation having custody of the
book in which proceedings of meetings of stockholders are recorded. Delivery
to the corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date shall have been
fixed by the Board of Directors and prior action of the Board of Directors is
required by law, the record date for determining stockholders entitled to
consent to action in writing without a meeting shall be at the close of
business on the date on which the Board of Directors adopts a resolution
taking such prior action.
Section 9. REGISTERED STOCKHOLDERS. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and
shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
ARTICLE IX
GENERAL PROVISIONS
Section 1. DIVIDENDS. The Board of Directors from time to time may
declare, and the corporation may pay, dividends on its outstanding shares in
cash, property, or its own shares pursuant to law and subject to the
provisions of the Certificate of Incorporation and these Bylaws.
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Section 2. RESERVES. The Board of Directors may by resolution
create a reserve or reserves out of earned surplus for any proper purpose or
purposes, and may abolish any such reserve in the same manner.
Section 3. NEGOTIABLE INSTRUMENTS. All bills, notes, checks or
instruments for the payment of money shall be signed by such officer or
officers or such other person or persons as permitted by these Bylaws or in
such manner as the Board of Directors from time to time may designate.
Section 4. FISCAL YEAR. The fiscal year of the corporation shall be
fixed by resolution of the Board of Directors.
Section 5. BOOKS AND RECORDS. The corporation shall keep books and
records of account and shall keep minutes of the proceedings of the
stockholders, the Board of Directors, and each committee of the Board of
Directors. The corporation shall keep at its registered office or principal
place of business, or at the office of its transfer agent or registrar, a
record of the original issuance of shares issued by the corporation and a
record of each transfer of those shares that have been presented to the
corporation for registration of transfer. Such records shall contain the
names and addresses of all past and current stockholders of the corporation
and the number and class of shares issued by the corporation held by each of
them. Any books, records, minutes, and share transfer records may be in
written form or in any other form capable of being converted into written
form within a reasonable time.
Section 6. EXECUTION OF CONTRACTS, DEEDS, ETC. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the corporation to enter into or execute and deliver any and
all contracts, deeds, bonds, mortgages and other obligations or instruments,
and such authority may general or confined to specific instances.
Section 7. VOTING OF STOCK IN OTHER CORPORATIONS. Unless otherwise
provided by resolution of the Board of Directors, the Chairman of the Board
or the Chief Executive Officer, from time to time, may (or may appoint one or
more attorneys or agents to) cast the votes that the corporation may be
entitled to cast as a stockholder or otherwise in any other corporation or
business enterprise, any of whose shares or securities may be held by the
corporation, at meetings of the holders of the shares or other securities of
such other corporation or business enterprise. If one or more attorneys or
agents are appointed, then the Chairman of the Board or the Chief Executive
Officer may instruct the person or persons so appointed as to the manner of
casting such votes or giving such consent. The Chairman of the Board or the
Chief Executive Officer may, or may instruct the attorneys or agents
appointed to, execute or cause to be executed in the name and on behalf of
the corporation or under its seal or otherwise, such written proxies,
consents, waivers or other instruments as may be necessary or proper in the
circumstances.
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ARTICLE X
INDEMNIFICATION
Section 1. MANDATORY INDEMNIFICATION. To the fullest extent
permitted by the General Corporation Law of Delaware, as the same may be
amended from time to time, the corporation shall indemnify any current or
former director or officer of the corporation (or his or her testator or
estate) made or threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether criminal, civil
administrative, or investigative, by reason of the fact that he or she is or
was a director or officer of the corporation or is or was serving, at the
request of the corporation, as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, employee benefit
plan, or other enterprise. Subject to applicable law, the corporation may
indemnify an employee or agent of the corporation to the extent that and with
respect to such proceedings as, the Board of Directors may determine by
resolution, in its discretion.
The corporation shall have the power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, limited liability company or other enterprise, against
any liability asserted against such person and incurred by such person in any
such capacity, or arising out of such person's status as such, whether or not
the corporation would have the power to indemnify such person against such
liability.
Section 2. MANDATORY ADVANCEMENT OF EXPENSES. To the fullest extent
permitted by the General Corporation Law of Delaware, as the same may be
amended from time to time, the corporation shall pay in advance all expenses
(including attorneys' fees) incurred by any director or officer, or former
director or officer, or any person who is serving or has served at the
corporation's request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, in defending any
civil, criminal, administrative or investigative action, suit or proceeding.
Such person shall repay such amount to the corporation if it shall ultimately
be determined that he is not entitled to be indemnified by the corporation as
authorized by this Article XI.
ARTICLE XI
AMENDMENTS
These Bylaws may be altered, amended, or repealed or new Bylaws may be
adopted by the Board of Directors at any regular or special meeting of the
Board, subject to the stockholders' right to adopt, amend or repeal these
Bylaws or adopt new Bylaws. Notwithstanding the foregoing and anything
contained in the Bylaws to the contrary, the Bylaws shall not be amended or
repealed by the stockholders, and no provision inconsistent therewith shall
be adopted by the stockholders, without the affirmative vote of the holders
of at least two-thirds (2/3) of the voting power of all shares of the
corporation entitled to vote generally in the election of directors voting
together as a single class.
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