Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
ACCPAC INTERNATIONAL, INC. (the "Company")
Adopted August 13, 1998
ARTICLE I
OFFICES
The registered office of the Company shall be at 1013 Centre Road, City of
Wilmington, County of New Castle, State of Delaware. The Company may also have
one or more offices at such other places, either inside or outside of the State
of Delaware, as the Board of Directors may from time to time determine or as the
business of the Company may require. The books and records of the Company may
be kept (subject to the provisions of the laws of the State of Delaware) at any
place, either inside or outside of the State of Delaware, as from time to time
may be determined by the Board of Directors.
ARTICLE II
STOCKHOLDERS
Section 2.1. PLACE OF MEETING. Meetings of stockholders (whether annual
or special) shall be held at such place, either inside or outside of the State
of Delaware, as the Board of Directors shall from time to time determine.
Section 2.2. ANNUAL MEETINGS. The annual meeting of stockholders shall
be held at such time as the Board of Directors shall determine from time to
time. If, for any reason, the annual meeting shall not be held at the
specified time herein, the directors shall fix another date for such meeting.
Section 2.3. SPECIAL MEETINGS. Unless otherwise prescribed by law or by
the Company's certificate of incorporation, as amended from time to time (the
"Charter"), special meetings of stockholders may be held at any time on call of
the Chairman of the Board of Directors, a Vice Chairman of the Board of
Directors, the President, or, at the request in writing of a majority of the
Board of Directors, any officer. Such request shall state the purpose or
purposes of the proposed meeting.
Section 2.4. NOTICE OF MEETINGS. Except as otherwise provided by law,
at least twenty (20) days' notice of stockholders' meetings stating the time
and place and the objects thereof shall be given by the Chairman of the Board
of Directors, a Vice Chairman of the Board
of Directors, the President, the Secretary or an Assistant Secretary to each
stockholder of record having voting power in respect of the business to be
transacted thereat. Subject to Section 2.5 of this Article II, no business
other than that stated in the notice shall be transacted at any meeting.
Section 2.5. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS. (A) ANNUAL
MEETINGS OF STOCKHOLDERS. (1) Nominations of persons for election to the Board
of Directors and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the Company's
notice of meeting delivered pursuant to Section 2.4 of this Article II, (b) by
or at the direction of the Board of Directors or (c) by any stockholder of the
Company who is entitled to vote at the meeting, who complied with the notice
procedures set forth in paragraphs (A)(2) and (A)(3) of this Section 2.5 and who
was a stockholder of record at the time such notice is delivered to the
Secretary of the Company.
(2) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of
this Section 2.5, the stockholder must have given timely notice thereof in
writing to the Secretary of the Company and such business must be a proper
subject for stockholder action under the General Corporation Law of the State of
Delaware. To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal executive offices of the Company not less than sixty
(60) days 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 advanced by more than thirty (30) days or delayed
by more than sixty (60) days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the ninetieth day
prior to such annual meeting and not later than the close of business on the
later of the sixtieth day prior to such annual meeting or the tenth day
following the day on which public announcement of the date of such meeting is
first made. Such stockholder's notice shall set forth (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director, 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 (the "Exchange Act") (including such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected); (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made; and (c) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Company's books, and of such beneficial owner
and (ii) the class and number of shares of the Company which are owned
beneficially and of record by such stockholder and such beneficial owner. If
the stockholder or beneficial owner intends to solicit proxies in support of any
such nomination or proposal, such stockholder's notice shall also include a
representation to that effect.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2)
of this Section 2.5 to the contrary, in the event that the number of
directors to be elected to the Board of Directors is increased and there
is no public announcement naming all of the nominees for
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director or specifying the size of the increased Board of
Directors made by the Company at least seventy (70) days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 2.5 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary at the principal executive offices of the
Company not later than the close of business on the tenth day following the
day on which such public announcement is first made by the Company.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Company's notice of meeting pursuant to Section 2.4
of this Article II. Nominations of persons for election to the Board of
Directors may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Company's notice of meeting (a) by or at the
direction of the Board of Directors or (b) by any stockholder of the Company who
is entitled to vote at the meeting, who complies with the notice procedures set
forth in this Section 2.5 and who is a stockholder of record at the time such
notice is delivered to the Secretary of the Company. Nominations by
stockholders of persons for election to the Board of Directors may be made at
such a special meeting of stockholders if the stockholder's notice required by
paragraph (A)(2) of this Section 2.5 shall be delivered to the Secretary at the
principal executive offices of the Company not earlier than the ninetieth day
prior to such special meeting and not later than the close of business on the
later of the sixtieth day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(C) GENERAL. (1) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.5 shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with the procedures set forth
in this Section 2.5. Except as otherwise provided by law, the Charter or these
By-Laws, the chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made in accordance with this Section 2.5 and, if any proposed nomination or
business is not in compliance with this Section 2.5, or if a stockholder or
beneficial owner solicits proxies in support of a nomination or proposal without
having made the representation required in paragraph (A)(2) of this Section 2.5,
to declare that such proposal or nomination shall be disregarded.
(2) For purposes of this Section 2.5, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Company with the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 2.5, a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 2.5. Nothing in this
Section 2.5 shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Company's proxy statement pursuant to Rule
14a-8 under the Exchange Act.
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Section 2.6. QUORUM. At any meeting of stockholders, the presence in
person or by proxy of the holders of shares entitled to cast a majority of all
the votes which could be cast at such meeting by the holders of all of the
outstanding shares of stock of the Corporation entitled to vote on every matter
that is to be voted on without regard to class at such meeting shall constitute
a quorum. At any meeting of stockholders at which a quorum is not present, the
person serving as chairman of the meeting or the holders of shares entitled to
cast a majority of all of the votes which could be cast at such meeting by the
holders of outstanding shares of stock of the Company who are present in person
or by proxy and who are entitled to vote on every matter that is to be voted on
without regard to class at such meeting may adjourn the meeting from time to
time. At any meeting of stockholders duly called and held at which a quorum is
present, (i) in all matters other than the election of directors, a majority of
the votes which could be cast at such meeting upon a give question and (ii) in
the case of the election of directors, a plurality of the votes which could be
cast at such meeting upon such election, by such holders who are present in
person or by proxy, shall be necessary, in addition to any vote or other action
that may be expressly required by the provisions of the Charter or these By-Laws
or by the law of the State of Delaware, to decide such question or election, and
shall decide such question or election if no such additional vote or other
action is so required.
Section 2.7. ORGANIZATION AND CONDUCT OF BUSINESS. The Chairman of the
Board of Directors shall act as chairman of meetings of the stockholders. The
Board of Directors may designate any other officer or director of the Company to
act as chairman of any meeting in the absence of the Chairman of the Board of
Directors, and the Board of Directors may further provide for determining who
shall act as chairman of any stockholders' meeting in the absence of the
Chairman of the Board of Directors and such designee. The person serving as
chairman of any meeting of stockholders shall determine the order of business
and the procedure at the meeting, including such regulation of the manner of
voting and the conduct of discussion as seem to him or her in order.
The Secretary of the Company shall act as secretary of all meetings of the
stockholders, but in the absence of the Secretary the presiding officer may
appoint any other person to act as secretary of any meeting.
Section 2.8. PROXIES AND VOTING. At any meeting of stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing or by a transmission permitted by law filed in accordance
with the procedure established for the meeting. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission
created pursuant to this paragraph may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission.
All voting, including on the election of directors but excepting where
otherwise required by law, may be a voice vote; provided, however, that upon
demand therefor by a stockholder entitled to vote or by his or her proxy, a
stock vote
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shall be taken. Every stock vote shall be taken by ballots, each
of which shall state the name of the stockholder or proxy voting and such
other information as may be required under the procedure established for the
meeting.
Section 2.9. STOCK LISTS. A complete list of stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in his or her name, shall be open to the examination of any
such stockholder, for any purpose germane to the meeting, during ordinary
business hours for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or if not so specified, at the
place where the meeting is to be held.
The stock list shall also be kept at the place of the meeting during the
whole time thereof and shall be open to the examination of any such stockholder
who is present. This list shall presumptively determine the identity of the
stockholders entitled to vote at the meeting and the number of shares held by
each of them.
Section 2.10. RATIFICATION. Any transaction questioned in any
stockholders' derivative suit, or any other suit to enforce alleged rights of
the Company or any of its stockholders, on the ground of lack of authority,
defective or irregular execution, adverse interest of any director, officer or
stockholder, nondisclosure, miscomputation or the application of improper
principles or practices of accounting may be approved, ratified and confirmed
before or after judgment by the Board of Directors or by the holders of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), voting as
provided in Section 2.6, and, if so approved, ratified or confirmed, shall have
the same force and effect as if the questioned transaction had been originally
duly authorized, and said approval, ratification or confirmation shall be
binding upon the Company and all of its stockholders and shall constitute a bar
to any claim or execution of any judgment in respect of such questioned
transaction.
Section 2.11. INSPECTORS OF ELECTION. The Board of Directors may, and to
the extent required by law, shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting, decide upon the
qualification of voters, count the votes, decide the results and make a written
report thereof in accordance with the General Corporation Law of the State of
Delaware. The Board of Directors may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the person presiding at
the meeting may, and to the extent required by law, shall, appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. Every vote taken by ballots shall be counted by an
inspector or inspectors appointed by the chairman of the meeting.
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ARTICLE III
BOARD OF DIRECTORS
Section 3.1. NUMBER, TERM OF OFFICE AND ELIGIBILITY. Subject to any
rights of holders of preferred stock to elect additional directors under
specified circumstances, the number of directors of the Company shall be fixed
from time to time exclusively by resolution of the Board of Directors adopted by
the affirmative vote of directors constituting not less than a majority of the
total number of directors that the Company would have if there were no vacancies
on the Company's Board of Directors, but shall consist of not more than nine (9)
nor less than three (3) directors. Each director shall be elected annually by
ballot by the holders of the Common Stock as provided in Section 2.6 at the
annual meeting of stockholders, to serve until his or her successor shall have
been elected and shall have qualified, except as provided in this Section 3.1.
Subject to any rights of holders of preferred stock, and unless the Board of
Directors otherwise determines, any vacancy occurring in the Board of
Directors caused by death, resignation, increase in number of directors or
otherwise may be filled by the affirmative vote of a majority of the
remaining members of the Board of Directors, though less than a quorum, or by
a sole remaining director, and except as otherwise provided by law, any such
vacancy may not be filled by the stockholders of the Company, and any
director so elected shall hold office until the next election of directors
and until his or her successor is duly elected and qualified, or until his or
her earlier death, resignation or removal.
Section 3.2. MEETINGS. Meetings of the Board of Directors may be held at
such place, either inside or outside of the State of Delaware, as may from time
to time be designated by the Chairman of the Board of Directors, the President
or resolution of the Board of Directors or as may be specified in the call of
any meeting. In the absence of any such designation, the meetings shall be held
at the principal executive offices of the Company.
An annual meeting of the Board of Directors shall be held on the same day
as, and as soon as practicable following the annual meeting of stockholders or
at such other time or place as shall be determined by the Board of Directors at
its regular meeting next preceding said annual meeting of stockholders.
Special meetings of the Board of Directors may be held at any time on the
call of the Chairman of the Board of Directors, the President or the Board of
Directors. Meetings may be held at any time or place without notice if all the
directors are present or if those not present waive notice of the meeting in
writing.
Section 3.3. NOTICE OF MEETINGS. The Secretary or an Assistant Secretary
shall give notice of the time and place of meetings of the Board of Directors
(excepting the annual meeting of directors) by (i) mailing or sending via
courier such notice not later than during the second day preceding the day on
which such meeting is to be held, or (ii) by (a) sending a facsimile
transmission or other form of electronic communication containing such notice or
(b) delivering such notice personally or by telephone, in each case, not later
than during the first day preceding the day on which such meeting is to be
held to each director. Unless otherwise stated in the notice thereof any
and all business may be transacted at any meeting.
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Section 3.4. QUORUM AND ORGANIZATION OF MEETINGS. One-third of the total
number of members of the Board of Directors as constituted from time to time,
but in no event less than three, shall constitute a quorum for the transaction
of business; but if at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of those present may adjourn the meeting from
time to time, and the meeting may be held as adjourned without further notice or
waiver. Except as otherwise provided by law or by the Charter or these By-Laws,
a majority of the directors present at any duly constituted meeting may decide
any question brought before such meeting.
Meetings shall be presided over by the Chairman of the Board of Directors
or, in his or her absence, by such other person as the Board of Directors may
designate or the members present may select.
Section 3.5. POWERS. In addition to the powers and authorities by these
By-Laws expressly conferred upon them, the Board of Directors shall have and may
exercise all such powers of the Company and do all such lawful acts and things
that are not by statute, the Charter or these By-Laws directed or required to be
exercised or done by the stockholders.
Section 3.6. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director,
each member of any committee designated by the Board of Directors and each
officer, in the performance of his or her duties, shall be fully protected in
relying in good faith upon such information, opinions, reports or statements
presented to the Company by any of its officers or employees, or by committees
of the Board of Directors, or by any other person, as to matters such director,
member or officer, as the case may be, reasonably believes are within such
person's professional or expert competence and who has been selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Company.
Section 3.7. COMPENSATION OF DIRECTORS. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
services as members of committees of the Board of Directors; provided that
nothing herein contained shall be construed to preclude any director from
serving the Company in any other capacity and receiving compensation therefor.
Section 3.8. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless
otherwise provided by the Charter or these By-Laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means
of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 3.8 shall constitute
presence in person at such meeting.
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ARTICLE IV
COMMITTEES
Section 4.1. COMMITTEES. The Board of Directors may from time to time
establish standing committees or special committees of the Board of Directors,
each of which shall have such powers and functions as may be delegated to it by
the Board of Directors. The Board of Directors may abolish any committee
established by or pursuant to this Section 4.1 as it may deem advisable. Each
such committee shall consist of two or more directors, the exact number being
determined from time to time by the Board of Directors. Designations of the
chairman and members of each such committee, and, if desired, a vice chairman
and alternates for members, shall be made by the Board of Directors. In the
absence or disqualification of any member of any committee and any alternate
member in his or her place, the member or members of the committee present at
the meeting and not disqualified from voting whether or not he or she or they
constitute a quorum, may by unanimous vote appoint another member of the Board
of Directors to act at the meeting in the place of the absent or disqualified
member. Each committee shall have a secretary who shall be designated by its
chairman. A vice chairman of a committee shall act as the chairman of the
committee in the absence or disability of the chairman.
Section 4.2. RULES AND PROCEDURES. Each committee may fix its own rules
and procedures and shall meet at such times and places as may be provided by
such rules, by resolution of the committee or by call of the chairman or vice
chairman. Notice of meeting of each committee, other than of regular meetings
provided for by its rules or resolutions, shall be given to committee members.
The presence of one-third of its members, but not less than two, shall
constitute a quorum of any committee, and all questions shall be decided by a
majority vote of the members present at the meeting. All action taken at each
committee meeting shall be recorded in minutes of the meeting.
Section 4.3. APPLICATION OF ARTICLE. Whenever any provision of any other
document relating to any committee of the Company named therein shall be in
conflict with any provision of this Article IV, the provisions of this Article
IV shall govern, except that if such other document shall have been approved by
the stockholders, voting as provided in the Charter, or by the Board of
Directors, the provisions of such other document shall govern.
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ARTICLE V
OFFICERS
Section 5.1. OFFICERS. The Officers of the Company shall include a
Chairman of the Board of Directors, a President, one or more Vice Presidents, a
Treasurer and a Secretary, each of whom shall be elected by the Board of
Directors to hold office until his or her successor shall have been chosen and
shall have qualified. The Board of Directors, the Chairman of the Board of
Directors and the President may elect or appoint one or more Assistant Vice
Presidents, one or more Assistant Treasurers, one or more Assistant Secretaries,
and the Board of Directors may elect or appoint such other officers as it may
deem necessary, or desirable, each of whom shall have such authority, shall
perform such duties and shall hold office for such term as may be prescribed by
the Board of Directors from time to time. Any person may hold at one time more
than one office, excepting that the duties of the President and Secretary shall
not be performed by one person.
Section 5.2. CHAIRMAN OF THE BOARD OF DIRECTORS. Subject to the
provisions of these By-Laws and to the direction of the Board of Directors, he
or she shall preside at all meetings of the Board of Directors. He or she may
redelegate from time to time and to the full extent permitted by law, in
writing, to officers or employees of the Company any or all of such duties and
powers, and any such redelegation may be either general or specific. Whenever
he or she so shall delegate any of his or her authority, he or she shall file a
copy of the redelegation with the Secretary of the Company.
Section 5.3. PRESIDENT. The President shall be the Chief Executive
Officer of the Company. Subject to the provisions of these By-Laws and to the
direction of the Board of Directors, the President shall have ultimate authority
for decisions relating to the general management and control of the affairs and
business of the Company and shall perform all other duties and exercise all
other powers commonly incident to the position of President and Chief Executive
Officer or which are or from time to time may be delegated to him or her by the
Board of Directors, or which are or may at any time be authorized or required by
law. He or she may redelegate from time to time and to the full extent
permitted by law, in writing, to officers or employees of the Company any or all
of such duties and powers, and any such redelegation may be either general or
specific. Whenever he or she so shall delegate any of his or her authority, he
or she shall file a copy of the redelegation with the Secretary of the Company.
Section 5.4. VICE PRESIDENTS. Each of the Vice Presidents shall have such
powers and shall perform such duties as may be delegated to him or her by the
Board of Directors, the Chairman of the Board of Directors, the President or
such other officer or officers to whom he or she is directly responsible.
Section 5.5. TREASURER AND ASSISTANT TREASURER. The Treasurer, subject
to the direction of the Board of Directors, shall have the care and custody
of all funds and securities of the Company which may come into his or her
hands. When necessary or proper he or she shall endorse on behalf of the
Company, for collection, checks, notes and other obligations, and shall
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deposit all funds of the Company in such banks or other depositories as
may be designated by the Board of Directors or by such officers or employees
as may be authorized by the Board of Directors so to designate. He or she
shall perform all acts incident to the office of Treasurer, subject to the
control of the Board of Directors and such other officer or officers to whom
he or she is directly responsible. He or she may be required to give a bond
for the faithful discharge of his or her duties, in such sum and upon such
conditions as the Board of Directors may require.
At the request and direction of the Treasurer or, in the case of his or her
absence or inability to act, any Assistant Treasurer may act in his or her
place. In the case of the death of the Treasurer, or in the case of his or her
absence or inability to act without having designated an Assistant Treasurer to
act temporarily in his or her place, the Assistant Treasurer so to perform the
duties of the Treasurer shall be designated by the Chairman of the Board of
Directors or the President.
Section 5.6. SECRETARY AND ASSISTANT SECRETARY. The Secretary shall keep
full and accurate minutes of the meetings of the stockholders and of the Board
of Directors in the proper record book of the Company provided therefor, and,
when required, the minutes of meetings of the committees, and shall be
responsible for the custody of all such minutes. Subject to the direction of
the Board of Directors, the Secretary shall have custody of the stock ledgers
and documents of the Company. He or she shall have custody of the corporate
seal of the Company and shall affix and attest such seal to any instrument whose
execution under seal shall have been duly authorized. He or she shall give due
notice of meetings and, subject to the direction of the Board of Directors,
shall perform all other duties commonly incident to his or her office or as
properly required of him or her by the Chairman of the Board of Directors and
such other officer or officers to whom he or she is directly responsible and
shall enjoy all other powers commonly incident to his or her office.
At the request and direction of the Secretary or, in the case of his or her
absence or inability to act, any Assistant Secretary may act in his or her
place. In the case of the death of the Secretary, or in the case of his or her
absence or inability to act without having designated an Assistant Secretary to
act temporarily in his or her place, the Assistant Secretary or other person so
to perform the duties of the Secretary shall be designated by the Chairman of
the Board of Directors or the President.
Section 5.7. OTHER OFFICERS. Each other officer shall perform such duties
commonly incident to his or her office or as properly required of him or her by
the Chairman of the Board of Directors and such other officer or officers to
whom he or she is directly responsible.
Section 5.8. SALARIES. Salaries of officers, agents or employees shall
be fixed from time to time by the Board of Directors or by such committee or
committees, or person or persons, if any, to whom such power shall have been
delegated by the Board of Directors. An employment contract, whether with an
officer, agent or employee, if expressly approved or specifically authorized
by the Board of Directors, may fix a term of employment thereunder; and
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such contract, if so approved or authorized, shall be valid and binding upon
the Company in accordance with the terms thereof, provided that this
provision shall not limit or restrict in any way the right of the Company at
any time to remove from office, discharge or terminate the employment of any
such officer, agent or employee prior to the expiration of the term of
employment under any such contract.
Section 5.9. VACANCIES. A vacancy in any office filled by election of
the Board of Directors may be filled by the Board of Directors by the
election of a new officer who shall hold office, subject to the provisions of
this Article V, until the regular meeting of the directors following the next
annual meeting of the stockholders and until his or her successor is elected.
Section 5.10. REMOVAL OR DISCHARGE. Any officer may be removed or
discharged by the Chairman of the Board of Directors at any time excepting an
officer who is also a director. Any officer who also is a director may be
discharged at any time by the Board of Directors.
ARTICLE VI
RESIGNATIONS
Any director, officer or agent of the Company, or any member of any
committee, may resign at any time by giving written notice to the Board of
Directors, the Chairman of the Board of Directors, the President or the
Secretary of the Company. Any such resignation shall take effect at the time
specified therein, or if the time be not specified therein, then upon receipt
thereof. The acceptance of such resignation shall not be necessary to make it
effective.
ARTICLE VII
CAPITAL STOCK - DIVIDENDS - SEAL
Section 7.1. CERTIFICATES OF SHARES. The certificates for shares of the
capital stock of the Company shall be in such form, not inconsistent with the
Charter, as shall be approved by the Board of Directors. The certificates shall
be numbered and signed by the Chairman of the Board of Directors, the President
or a Vice President, and also by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary. Any and all signatures may be facsimiles.
All certificates shall bear the name of the persons owning the shares
represented thereby, shall state the number of shares represented by such
certificate and the date of issue; and such information shall be entered in the
Company's original stock ledger.
Section 7.2. ADDRESSES OF STOCKHOLDERS. It shall be the duty of every
stockholder to notify the Company of his or her post office address and of
any change therein. The latest address furnished by each stockholder shall
be entered on the original stock ledger of the Company and the latest address
appearing on such original stock ledger shall be deemed conclusively to be
the post office address and the last-known post office address of such
stockholder. If any stockholder shall fail to notify the Company of his or
her post office address, it shall be sufficient to send corporate notices
to such stockholder at the address, if any, understood by the Secretary to
be his or her post office address, or in the absence of such
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address, to such stockholder, at the General Post Office in the
City of Wilmington, State of Delaware.
Section 7.3. LOST, DESTROYED OR STOLEN CERTIFICATE. Any person claiming a
stock certificate in lieu of one lost, destroyed or stolen, shall give the
Company an affidavit as to his, her or its ownership of the certificate and of
the facts which go to prove that it has been lost, destroyed or stolen. If
required by the Board of Directors, he, she or it also shall give the Company a
bond, in such form as may be approved by the Board of Directors, sufficient to
indemnify the Company against any claim that may be made against it on account
of the alleged loss of the certificate or the issuance of a new certificate. A
new certificate shall be issued upon receipt of such an affidavit and, if
required, upon the giving of such a bond.
Section 7.4. RECORD OF HOLDER OF SHARES. The Company shall be entitled to
treat the holder of record of any share or shares as the holder in fact thereof,
and accordingly shall not be bound to recognize any equitable or other claims to
or interest in such shares on the part of any other person, whether or not it
shall have express or other notice thereof, save as expressly provided by the
General Corporation Law of the State of Delaware. The Company 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.
Section 7.5. RECORD DATE. In order that the Company may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders, or
to receive payment of any dividend or other distribution or allotment of any
rights or to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix a record date, which record date shall not precede the date on
which the resolution fixing the record date is adopted and which record date
shall not be more than sixty (60) nor less than ten (10) days before the date of
any meeting of stockholders, nor more than sixty (60) days prior to the time for
such other action as hereinbefore described; provided, however, that if no
record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the day next preceding the day on which notice is
given or, if notice is waived, at the close of business on the day next
preceding the day on which the meeting is held, and, for determining
stockholders entitled to receive payment of any dividend or other distribution
or allotment of rights or to exercise any rights of change, conversion or
exchange of stock or for any other purpose, the record date shall be at the
close of business on the day on which the Board of Directors adopts a resolution
relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided that the Board of Directors may fix a new record date for the adjourned
meeting.
If stockholders are entitled to consent to corporate action in writing
without a meeting in accordance with the General Corporation Law of the State
of Delaware and the Charter, in order that the Company may determine the
stockholders entitled to so consent, the Board of Directors may fix a record
date, which shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date
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shall be not more than ten
(10) days after the date upon which the resolution fixing the record date is
adopted and if no record date has been fixed by the Board of Directors and if
no prior action by the Board of Directors is required by the General
Corporation Law of the State of Delaware, the record date shall be the first
date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Company in the manner prescribed by
Article 9 of the Charter. If stockholders are entitled to consent to
corporate action in writing without a meeting in accordance with the General
Corporation Law of the State of Delaware and the Charter, and no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by the General Corporation Law of the State of Delaware
with respect to the proposed action by written consent of the stockholders,
the record date for determining stockholders entitled to consent to corporate
action in writing shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
Section 7.6. REGULATIONS. The Board of Directors shall have power and
authority to make all such rules and regulations not inconsistent with any of
the provisions of these By-Laws, the Charter or the General Corporation Law of
the State of Delaware, as it may deem expedient, concerning the issue, transfer
and registration of certificates for shares of the stock of the Company.
Section 7.7. CORPORATE SEAL. The corporate seal shall be in such form as
shall from time to time be approved by the Board of Directors. If and when so
authorized by the Board of Directors, a duplicate of the seal may be kept and
used by the Secretary or Treasurer or by any Assistant Secretary or Assistant
Treasurer.
ARTICLE VIII
EXECUTION OF CONTRACTS AND OTHER DOCUMENTS
Section 8.1. CONTRACTS, ETC. Except as otherwise prescribed in these
By-Laws, such officers, employees or agents of the Company as shall be specified
by the Board of Directors shall sign, in the name and on behalf of the Company,
all deeds, bonds, contracts, mortgages and other instruments or documents, the
execution of which shall be authorized by the Board of Directors; and such
authority may be general or confined to specific instances. Except as so
authorized by the Board of Directors, no officer, agent or employee of the
Company shall have power or authority to bind the Company by any contract or
engagement or to pledge, mortgage, sell or otherwise dispose of its credit or
any of its property or to render it pecuniarily liable for any purpose or in any
amount.
Section 8.2. CHECKS, DRAFTS, ETC. Except as otherwise provided in
these By-Laws, all checks, drafts, notes, bonds, bills of exchange or other
orders, instruments or obligations for the payment of money shall be signed
by such officer or officers, employee or employees, or agent or agents,
as the Board of Directors shall by resolution direct. The Board of
Directors may, in its discretion, also provide by resolution for the
countersignature or registration of any or all such orders, instruments
or obligations for the payment of money.
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ARTICLE IX
FISCAL YEAR
The fiscal year of the Company shall begin on the first day of April and
end on the last day of March in each year.
ARTICLE X
MISCELLANEOUS
Section 10.1. ORIGINAL STOCK LEDGER. As used in these By-Laws and in the
Charter, the words "original stock ledger" shall mean the record maintained by
the Secretary of the Company of the name and address of each of the holders of
shares of any class of stock of the Company, and the number of shares and the
numbers of the certificates for such shares held by each of them, taking into
account transfers at the time made by and recorded on the transfer sheets of
each of the Transfer Agents of the Company although such transfers may not have
been posted in the record maintained by the Secretary.
Section 10.2. NOTICES AND WAIVERS THEREOF. Whenever any notice whatsoever
is required by these By-Laws, the Charter or any of the laws of the State of
Delaware to be given to any stockholder, director or officer, such notice,
except as otherwise provided by the laws of the State of Delaware, may be given
personally or by telephone or be given by facsimile transmission or other form
of electronic communication, addressed to such stockholder at the address set
forth as provided in Section 7.2, or to such director or officer at his or her
Company location, if any, or at such address as appears on the books of the
Company, or the notice may be given in writing by depositing the same in a post
office, or in a regularly maintained letter box, or by sending it via courier in
a postpaid, sealed wrapper addressed to such stockholder at the address set
forth in Section 7.2, or to such director or officer at his or her Company
location, if any, or such address as appears on the books of the Company.
Any notice given by facsimile transmission or other form of electronic
communication shall be deemed to have been given when it shall have been
transmitted. Any notice given by mail or courier shall be deemed to have been
given when it shall have been mailed or delivered to the courier.
A waiver of any such notice in writing, including by facsimile
transmission, signed or dispatched by the person entitled to such notice or by
his or her duly authorized attorney, whether before or after the time stated
therein, shall be deemed equivalent to the notice required to be given, and the
presence at any meeting of any person entitled to notice thereof shall be deemed
a waiver of such notice as to such person.
Section 10.3. VOTING UPON STOCKS. The Board of Directors (whose
authorization in this connection shall be necessary in all cases) may from
time to time appoint an attorney or attorneys or agent or agents of the
Company, or may at any time or from time to time authorize the Chairman of
the Board of Directors, the President, any Vice President, the Treasurer or
the
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Secretary to appoint an attorney or attorneys or agent or agents of the
Company, in the name and on behalf of the Company, to cast the votes which
the Company may be entitled to cast as a stockholder or otherwise in any
other corporation or association, any of the stock or securities of which may
be held by the Company, at meetings of the holders of the stock or other
securities of such other corporation or association, or to consent in writing
to any action by any such other corporation or association and the Board of
Directors or any aforesaid officer so authorized may instruct the person or
persons so appointed as to the manner of casting such votes or giving such
consent, and the Board of Directors or any aforesaid officer so authorized
may from time to time authorize the execution and delivery, on behalf of the
Company and under its corporate seal, or otherwise, of such written proxies,
consents, waivers or other instruments as may be deemed necessary or proper
in the premises.
ARTICLE XI
AMENDMENTS
These By-Laws may be altered, amended or repealed at any meeting of
the Board of Directors or of the stockholders, provided that notice of such
alteration, amendment or repeal be contained in the notice of such meeting of
the Board of Directors or stockholders (subject, in the case of meetings of
stockholders, to the provisions of Article II of these By-Laws), as the case may
be. All such amendments must be approved by the affirmative vote of the holders
of at least 75% of the total voting power of all classes of outstanding capital
stock, voting together as a single class (if effected by action of the
stockholders), or by the affirmative vote of directors constituting not less
than a majority of the total number of directors that the Company would have if
there were no vacancies on the Company's Board of Directors (if effected by
action of the Board of Directors).
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