EXHIBIT 3.2
BY-LAWS OF
CARD ACTIVATION TECHNOLOGIES INC.
ARTICLE I
MEETINGS OF STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of Card
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Activation Technologies Inc. (the "Corporation") shall be held on such date and
at such time as the Board of Directors may designate. At such annual meeting,
the stockholders entitled to vote shall elect directors and transact such other
business as may be properly brought before the meeting.
Section 2. Special Meetings. Special meetings of the stockholders may be
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called at any time by the Board of Directors or the President and shall be
called by the President or Secretary at the request in writing of stockholders
of record owning at least twenty percent (20%) of the shares of stock of the
Corporation outstanding and entitled to vote.
Section 3. Notice of Meetings. Written notice of the place (if any), date
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and time of the holding of each annual and special meeting of the stockholders,
the means of remote communications, if any, by which stockholders and proxy
holders may be deemed to be present in person and vote at such meeting, and, in
the case of a special meeting, the purpose or purposes thereof, shall be given
to each stockholder entitled to vote at such meeting, unless otherwise required
under the General Corporation Law of Delaware ("Delaware General Corporation
Law"), not less than ten nor more than sixty days before the date of such
meeting. If mailed, such notice shall be deemed to be given when deposited in
the United States mail, postage prepaid, directed to such stockholder at such
stockholder's address as it appears on the records of the Corporation, unless
such stockholder shall have filed with the Secretary of the Corporation a
written request that notices to such stockholder be mailed to some other
address, in which case it shall be directed to such stockholder at such other
address.
Whenever notice is required to be given under the Delaware General
Corporation Law, the Certificate of Incorporation or these By-Laws, a written
waiver signed by the person entitled to notice, or a waiver by electronic
transmission by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at
a meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
When a meeting is adjourned to another time or place, notice of such
adjourned meeting need not be given if the time, place, if any, thereof, and the
means of remote communications, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such adjourned meeting are
announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might have been
transacted at the original meeting. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 4. Place of Meetings. Meetings of the stockholders may be held at
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such place, either within or without the State of Delaware, as the Board of
Directors or the officer calling the same may specify in the notice of such
meeting. If, pursuant to the preceding sentence, the Board of Directors is
authorized to determine the place of the meeting, it may, in its sole
discretion, determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication.
Section 5. Quorum. Except as otherwise provided by the Delaware General
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Corporation Law or in the Certificate of Incorporation, at all meetings of the
stockholders the holders of one-third (1/3) of the issued and outstanding shares
entitled to vote shall be present in person or by proxy to constitute a quorum
for the transaction of any business, except that where a separate vote by a
class or series or classes or series is required, a quorum shall consist of
holders of one-third (1/3) of the issued and outstanding shares of such class or
series or classes or series entitled to vote. In the event of lack of a quorum,
the holders of a majority of the shares present in person or by proxy and
entitled to vote, or if no stockholder entitled to vote is present, any officer
of the Corporation, may adjourn the meeting. At any such adjourned meeting at
which a quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called.
Section 6. Organization. At each meeting of the stockholders, the
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President, or in his absence or inability to act, any person chosen by the
stockholders at such meeting, shall act as chairman of the meeting. The
Secretary, or in his absence or inability to act, any person appointed by the
chairman of the meeting, shall act as secretary of the meeting and keep the
minutes thereof.
Section 7. Order of Business. The order of business at all meetings of
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the stockholders shall be as determined by the chairman of the meeting.
Section 8. Voting.
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(a) Except as otherwise provided by the Certificate of Incorporation,
at each meeting of the stockholders, each holder of shares
entitled to vote at such meeting shall, as to all matters in respect
of which such shares have voting rights, be entitled to one vote in
person or by proxy for each share held of record by such stockholder.
Except as otherwise provided by the Delaware General Corporation Law,
the Certificate of Incorporation or these By-Laws, at a meeting of
stockholders at which a quorum is present, in all matters other than
the election of directors, the affirmative vote of the majority of
shares present in person or by proxy at such meeting of stockholders
and entitled to vote on the subject matter shall be the act of the
stockholders.
(b) Unless required by the Delaware General Corporation Law or the
Certificate of Incorporation or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by
written ballot. On a vote by written ballot, each ballot shall state
the number of shares voted and either (i) be a writing signed by the
stockholder voting, or by such stockholder's proxy, if there be such
proxy or (ii) if authorized by the Board of Directors, be submitted by
electronic transmission, provided that any such electronic
transmission either sets forth or is submitted with information from
which it can be determined that the electronic transmission was
authorized by the stockholder or proxy holder.
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Section 9. Proxies.
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(a) Each stockholder entitled to vote at any meeting of stockholders
or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for
such stockholder by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a
longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable power. Any
such proxy shall be delivered to the secretary of such meeting at or
prior to the time designated in the order of business for so
delivering such proxies.
(b) Without limiting the manner in which a stockholder may authorize
another person or persons to act for such stockholder as proxy, the
following shall constitute a valid means by which a stockholder may
grant such authority:
(1) A stockholder may execute a writing authorizing another
person or persons to act for such stockholder as proxy. Execution
may be accomplished by the stockholder or such stockholder's
authorized officer, director, employee or agent signing such
writing or causing such person's signature to be affixed to such
writing by any reasonable means including, but not limited to, by
facsimile signature.
(2) A stockholder may authorize another person on persons to
act for such stockholder as proxy by transmitting or authorizing
the transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of
the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will
be the holder of the proxy to receive such transmission, provided
that any such telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with
information from which it can be determined that the telegram,
cablegram or other electronic transmissions was authorized by the
stockholder. If it is determined that such telegrams, cablegrams
or other electronic transmissions are valid, the inspectors or,
if there are no inspectors, such other persons making that
determination shall specify the information upon which they
relied.
(c) Any copy, facsimile telecommunications or other reliable
reproduction of the writing or transmission created pursuant to
subsection (b) above 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.
Section 10. Fixing Date for Determination of Stockholders of Record.
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(a) In order that the Corporation may determine the stockholders
having voting power who are entitled to notice of or to vote at any
meeting of the stockholders or any adjournment thereof, 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 shall, unless otherwise required by
law, not be more than sixty nor less than ten days before the date of
such meeting. If no record date is
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fixed by the Board of Directors, the record date for determining
stockholders having voting power who are 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. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders
shall apply to any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for the adjourned
meeting.
(b) In order that the Corporation may determine the stockholders
having voting power who are entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the
date upon which the resolution fixing the record date is adopted by
the Board of Directors. If no record date has been fixed by the Board
of Directors, the record date for determining stockholders having
voting power who are entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of
Directors is required by the Delaware General Corporation Law, shall
be the first date on which a signed written consent setting forth the
action taken or proposed action to be taken is delivered to the
Corporation by delivery to its registered office in the State of
Delaware, its principal place of business, or an officer or agent of
the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the
Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been
fixed by the Board of Directors and prior action by the Board of
Directors is required by the Delaware General Corporation Law, the
record date for determining stockholders having voting power who are
entitled to consent to corporate action in writing without a meeting
shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) Subject to the Certificate of Incorporation, in order that the
Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights or
the stockholders entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall not be
more than sixty days prior to such action. If no record date is fixed,
the record date for determining stockholders having rights for any
such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 11. List of Stockholders. The officer who has charge of the stock
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ledger of the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Electronic mail addresses or other electronic contact information need not be
included on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, for a period of at least
ten days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is
provided with the notice of the meeting, or (ii) during ordinary business hours,
at the principal place of business of the Corporation. In the event that the
list is made available on an electronic network, reasonable steps may be taken
to ensure that such information is available only to stockholders of the
Corporation. If the meeting is to be held at a place, then the list shall be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the
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meeting is to be held solely by means of remote communication, then the list
shall also be open to the examination of any stockholder during the whole time
of the meeting on a reasonably accessible electronic network, and the
information required to access such list shall be provided with the notice of
the meeting.
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Section 12. Action by Written Consent.
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(a) Any action which is required to be or may be taken at any annual
or special meeting of the stockholders of the Corporation, may be
taken without a meeting, without prior notice to stockholders and
without a vote if consents in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock entitled to
vote on such matter, having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted,
and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall
be by hand or by certified or registered mail, return receipt
requested.
(b) Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless,
within sixty days of the earliest dated consent delivered in the
manner required by subsection (a) above to the Corporation, written
consents signed by a sufficient number of holders to take action are
delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to
the Corporation's registered office shall be by hand or by certified
or registered mail, return receipt requested.
(c) A telegram, cablegram or other electronic transmission consenting
to an action to be taken and transmitted by a stockholder or proxy
holder, or by a person or persons authorized to act for a stockholder
or proxy holder, shall be deemed to be written, signed and dated for
the purposes of this Section, provided that any such telegram,
cablegram or other electronic transmission sets forth or is delivered
with information from which the Corporation can determine (a) that the
telegram, cablegram or other electronic transmission was transmitted
by the stockholder or proxy holder or by a person or persons
authorized to act for the stockholder or proxy holder and (b) the date
on which such stockholder or proxy holder or authorized person or
persons transmitted such telegram, cablegram or electronic
transmission. The date on which such telegram, cablegram or electronic
transmission is transmitted shall be deemed to be the date on which
such consent was signed. No consent given by telegram, cablegram or
other electronic transmission shall be deemed to have been delivered
until such consent is reproduced in paper form and until such paper
form shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, its principal place of
business or an officer or agent of the Corporation having custody of
the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall
be made by hand or by certified or registered mail, return receipt
requested. Notwithstanding the foregoing limitations on delivery,
consents given by telegram, cablegram or other electronic transmission
may be otherwise delivered to the principal place of business of the
Corporation or to an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders
are recorded if, to the extent and in the manner provided by
resolution of the Board of Directors of the Corporation.
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(d) Any copy, facsimile or other reliable reproduction of a consent
in writing may be substituted or used in lieu of the original writing
for any and all purposes for which the original writing could be used,
provided that such copy, facsimile or other reproduction shall be a
complete reproduction of the entire original writing.
Section 13. Notice of Action by Consent. The Corporation shall give
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prompt notice of the taking of corporate action without a meeting by less than
unanimous written consent to stockholders who have not consented in writing and
who, if the action had been taken at a meeting, would have been entitled to
notice of the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of stockholders to take the
action were delivered to the Corporation in the manner provided in Article I,
Section 12(b) of these By-Laws.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. Except as may be otherwise provided by the
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Delaware General Corporation Law or the Certificate of Incorporation, the
business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors.
Section 2. Number, Election and Term of Office.
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(a) The Board of Directors shall consist of one or more members, the
number thereof to be determined from time to time by the Board of
Directors.
(b) Unless directors are elected by written consent in lieu of an
annual meeting as permitted by this Section, an annual meeting of
stockholders shall be held for the election of directors. Directors
shall be elected by a plurality of the votes of the shares present in
person or by proxy at the meeting and entitled to vote on the election
of directors. Stockholders entitled to vote may, unless the
Certificate of Incorporation otherwise provides, act by written
consent to elect directors; provided, however, that, if such consent
is less than unanimous, such action by written consent may be in lieu
of holding an annual meeting only if all of the directorships to which
directors could be elected at an annual meeting held at the effective
time of such action are vacant and are filled by such action.
(c) Each director shall hold office until such director's successor
shall have been duly elected and qualified or until such director's
earlier death, removal or resignation.
Section 3. Resignations. Any director may resign at any time upon notice
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given in writing or by electronic transmission to the Corporation, addressed to
the Board of Directors or the President or the Secretary. Any such resignation
shall take effect at the time specified therein or, if the time when it shall
become effective shall not be specified therein, immediately upon its receipt;
and, unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
Section 4. Removal of Directors. Any director or the entire Board of
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Directors may be removed, either with or without cause, at any time, by the
affirmative vote of the holders of a majority of the shares entitled to vote at
an election of directors.
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Section 5. Vacancies.
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(a) Vacancies and newly created directorships resulting from any
increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum,
or by a sole remaining director, and the directors so chosen shall
hold office until the next annual election and until their successors
are duly elected and qualified, unless sooner displaced. If at any
time, by reason of death or resignation or other cause, there are no
directors in office, then any officer or any stockholder or an
executor, administrator, trustee or guardian of a stockholder, or
other fiduciary entrusted with like responsibility for the person or
estate of a stockholder, may call a special meeting of stockholders in
accordance with these By-Laws, or may apply to the Court of Chancery
for a decree summarily ordering an election as provided in Section 211
of the Delaware General Corporation Law. If, at the time of filling
any vacancy or any newly created directorship, the directors then in
office shall constitute less than a majority of the whole Board (as
constituted immediately prior to any such increase), the Court of
Chancery may, upon application of any stockholder or stockholders
holding at least ten percent of the total number of the shares at the
time outstanding having the right to vote for such directors,
summarily order an election to be held to fill any such vacancies or
newly created directorships, or to replace the directors chosen by the
directors then in office as aforesaid, which election shall be
governed by Section 211 of the Delaware General Corporation Law as far
as applicable.
(b) Unless otherwise provided in the Certificate of Incorporation or
these By-Laws, when one 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 have so resigned, shall have the
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 in the filling of other vacancies.
Section 6. Place of Meeting. Meetings of the Board of Directors may be
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held at such place, within or without the State of Delaware, as the Board of
Directors may from time to time determine.
Section 7. First Meeting. The Board of Directors shall meet for the
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purpose of organization, the election of the officers of the Corporation, and
the transaction of other business, immediately after and at the same general
place as the annual meeting of the stockholders. Notice of such meeting need
not be given.
Section 8. Regular Meetings. Regular meetings of the Board of Directors
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shall be held at such time and at such place as the Board of Directors may from
time to time determine. If any day fixed for a regular meeting shall be a legal
holiday at the place where the meeting is to be held, then the meeting which
would otherwise be held on that day shall be held at the same hour on the next
succeeding business day. If so determined, notices of regular meetings of the
Board of Directors need not be given except as otherwise required by the
Delaware General Corporation Law or these By-Laws.
Section 9. Special Meetings. Special meetings of the Board of Directors
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may be called by one or more directors of the Corporation or by the President.
Section 10. Notice of Meetings. Notice of each special meeting of the
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Board of Directors (and of each regular meeting for which notice shall be
required) shall be given by the Secretary as hereinafter provided in this
Section 10, in which notice shall be stated the time and place of the meeting.
Notice of each such meeting shall be delivered to each director either
personally or by telephone, telegraph cable or wireless, at least twenty-four
hours before the time at which such meeting is to be held or by first-class
mail, postage prepaid, addressed to such
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director at such director's residence, or usual place of business, at least
three days before the day on which such meeting is to be held. Notice of any
such meeting need not be given to any director who shall, either before or after
the meeting, submit a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
Except as otherwise specifically required by the Delaware General Corporation
Law or the Certificate of Incorporation, a notice or waiver of notice of any
regular or special meeting need not state the purpose of such meeting.
Section 11. Quorum; Voting. A majority of the entire Board of Directors
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shall be present in person at any meeting of the Board of Directors in order to
constitute a quorum for the transaction of business at such meeting, and, except
as otherwise expressly required by the Delaware General Corporation Law, the
Certificate of Incorporation or these By-Laws, the vote of a majority of the
directors present at any meeting at which a quorum is present shall be the act
of the Board of Directors. In the event of lack of a quorum, a majority of the
directors present thereat, or if no director be present, the Secretary, may
adjourn such meeting to another time and place without notice other than
announcement at the meeting. At any adjourned meeting at which a quorum is
present, any business may be transacted which might have been transacted at the
meeting as originally called.
Section 12. Organization. At each meeting of the Board of Directors, the
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President, or, in such person's absence or inability to act, a director chosen
by a majority of the directors present shall act as chairman of the meeting and
preside thereat. The Secretary (or, in such person's absence or inability to
act any person appointed by the chairman) shall act as secretary of the meeting
and keep the minutes thereof.
Section 13. Presence at Meeting. Members of the Board of Directors or any
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committee or subcommittee designated by the Board of Directors may participate
in a meeting of such Board of Directors or committee or subcommittee by means of
conference telephone or other 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 shall constitute presence in person at the
meeting.
Section 14. Interested Directors; Quorum. No contract or transaction
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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 or more of its directors or officers are 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 or
subcommittee thereof which authorizes the contract or transaction, or solely
because any such director's or officer's votes are counted for such purpose, if:
(l) the material facts as to the director's or officer's relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee or subcommittee, and the Board of Directors
or committee or subcommittee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or (2)
the material facts as to the director's or officer's relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee or
subcommittee 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 or subcommittee thereof which authorizes the
contract or transaction.
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Section 15. Action Without Meeting Any action required or permitted to be
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taken at any meeting of the Board of Directors or of any committee or
subcommittee thereof may be taken without a meeting if all members of the Board
of Directors or committee or subcommittee, as the case may be, consent thereto
in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions are filed with the minutes of
proceedings of the Board of Directors, committee or subcommittee. Such filing
shall be in paper form if the minutes are maintained in paper form and shall be
in electronic form if the minutes are maintained in electronic form.
Section 16. Compensation. The Board of Directors shall have authority to
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fix the compensation, including fees and reimbursement of expenses, of directors
for services to the Corporation, provided no such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefore.
ARTICLE III
COMMITTEES
Section 1. Committees. The Board of Directors may designate one or more
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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 thereof present at any meeting and
not disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in place of any such absent or disqualified member. Any such
committee, to the extent permitted by law and to the extent provided in the
resolution of the Board of Directors, 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; but 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 the Delaware General Corporation Law to be submitted to stockholders
for approval or (ii) adopting, amending or repealing these By-Laws.
Section 2. Subcommittees. Any committee may create one or more
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subcommittees, each subcommittee to consist of one or more members of the
committee, and delegate to a subcommittee any or all of the powers and authority
of the committee.
Section 3. Committee and Subcommittee Rules. Unless the Board of
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Directors otherwise provides, each committee or subcommittee designated by the
Board of Directors may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee or subcommittee shall
conduct its business in the same manner as the Board of Directors conducts its
business pursuant to Article II of these By-Laws.
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ARTICLE IV
OFFICERS
Section 1. Election; Term of Office. The Board of Directors shall elect a
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President, Secretary and Treasurer. Each such officer shall hold office until
the first meeting of the Board of Directors following the annual meeting of
stockholders next succeeding such officer's election, and until such officer's
successor is elected and qualified or until such officer's earlier resignation,
removal or death. The Board of Directors may also elect such other officers and
agents (including, but not limited to, a Chairman of the Board and a Vice
Chairman of the Board (elected from one of its members), one or more Vice
Presidents, Assistant Vice Presidents, Assistant Secretaries and Assistant
Treasurers), who shall serve at the pleasure of the Board of Directors and who
shall have such authority and shall perform such duties as from time to time
shall be prescribed by the Board of Directors or by elected officers of the
Corporation. Any number of offices may be held by the same person.
Section 2. Resignations. Any officer of the Corporation may resign at any
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time upon delivery of a written notice to the Corporation, addressed to the
Board of Directors, the President or the Secretary. Any such resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt; and
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3. Removal. Any officer of the Corporation may be removed, either
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with or without cause, at any time, by the vote of the majority of the entire
Board of Directors, but such removal shall be without prejudice to the
contractual rights, if any, of the person so removed.
Section 4. Vacancies. A vacancy in any office, whether arising from
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death, resignation, removal or any other cause, may be filled for the unexpired
portion of the term by the Board of Directors at any regular or special meeting.
Section 5. Officers' Bonds or Other Security. If required by the Board of
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Directors, any officer of the Corporation shall give a bond or other security
for the faithful performance of his duties, in such amount and with such surety
or sureties as the Board of Directors may require.
Section 6. President. The President shall be the chief executive officer
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of the Corporation and shall preside at all meetings of the stockholders. In
the absence of the Chairman of the Board or the Vice Chairman of the Board, if
any, the President shall preside at the meetings of the Directors. Such person
shall have authority and perform such duties in the management of the
Corporation as set forth in these By-Laws and as from time to time shall be
prescribed by the Board of Directors and, to the extent not so prescribed, such
person shall have such authority and perform such duties in the management of
the Corporation, subject to the control of the Board, as generally pertain to
the office of President.
Section 7. Secretary. The Secretary shall:
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(a) Keep or cause to be kept in one or more books provided for that
purpose, the minutes of the meetings of the Board of Directors, the
committees or subcommittee of the Board of Directors and the
stockholders;
(b) See that all notices are duly given in accordance with the
provisions of the Certificate of Incorporation, these By-Laws and as
required by law;
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(c) Be custodian of the records and the seal of the Corporation and
affix and attest the seal to all stock certificates of the Corporation
(unless the seal of the Corporation on such certificates shall be a
facsimile, as hereinafter provided) and affix and attest the seal to
all other documents to be executed on behalf of the Corporation under
its seal;
(d) See that the books, reports, statements, certificates and other
documents and records required by law to be kept and filed are
properly kept and filed; and
(e) In general, have such powers and duties as generally pertain to
the office of Secretary and such other powers and duties as set forth
in the By-Laws and as from time to time may be assigned to such person
by the Board of Directors or the President.
Section 8. Treasurer. The Treasurer shall be the chief financial officer
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of the Corporation and shall exercise general supervision over the receipt,
custody, and disbursements of Corporate funds. The Treasurer shall sign, make
and indorse in the name of the Corporation, all checks, drafts, warrants and
orders for the payment of money, and pay out and dispose of same and receipts
for such, and, in general, have such powers and duties as generally pertain to
the office of Treasurer. Such person shall have such further powers and duties
as may be assigned to such person from time to time by the President or the
Board of Directors.
ARTICLE V
INDEMNIFICATION
Section 1. Right to Indemnification. The Corporation shall indemnify and
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hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any person who was or is made or is
threatened to be made a party or is otherwise involved in any action, suit or
proceeding, whether civil, criminal, administrative or investigative (a
"proceeding") by reason of the fact that he or she, or a person for whom he or
she is the legal representative, is or was a director, 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 or of a
partnership, joint venture, trust, enterprise or nonprofit entity, including
service with respect to employee benefit plans, against all liability and loss
suffered and expenses (including attorneys' fees) reasonable incurred by such
person. The Corporation shall be required to indemnify a person in connection
with a proceeding (or part thereof) initiated by such person only if the
proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation.
Section 2. Prepayment of Expenses. The Corporation shall pay the
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expenses (including attorneys' fees) incurred in defending any proceeding in
advance of its final disposition, provided, however, that the payment of
expenses incurred by a director or officer in advance of the final disposition
of the proceeding shall be made only upon receipt of an undertaking by the
director or officer to repay all amounts advanced if it should be ultimately
determined that the director or officer is not entitled to be indemnified under
this Article or otherwise.
Section 3. Claims. If a claim for indemnification or payment of expenses
----------- ------
under this Article is not paid in full within sixty days after a written claim
therefore has been received by the Corporation, the claimant may file suit to
recover the unpaid amount of such claim and, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any such
action the Corporation shall have the burden of proving the claimant was not
entitled to the requested indemnification or payment of expenses under
applicable law.
Section 4. Non-Exclusivity of Rights. The rights conferred on any person
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by this Article V shall not be exclusive of any other rights which such person
may have or hereafter
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acquire under any statute, provision of the certificate of incorporation, these
by-laws, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 5. Other Indemnification. The Corporation's obligation, if any,
----------- ----------------------
to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise or nonprofit entity shall be reduced by any amount such person
may collect as indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit enterprise.
Section 6. Amendment or Repeal. Any repeal or modification of the
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foregoing provisions of this Article shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE VI
STOCK
Section 1. Certificates. Every holder of stock shall be entitled to have
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a certificate signed by or in the name of the Corporation by the President or
any Vice President, and by the Secretary or an Assistant Secretary, of the
Corporation, certifying the number of shares owned by such person in the
Corporation. Any of or all the signatures on the certificate may be a
facsimile. In case any officer, transfer agent, or registrar who has signed or
whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer, transfer agent, or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as if such
person were such officer, transfer agent, or registrar at the date of issue.
Section 2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
---------- --------------------------------------------------------------
Certificates. The Corporation may issue a new certificate of stock in the place
- ------------
of any certificate theretofore issued by it, alleged to have been lost, stolen
or destroyed, and the Corporation may require the owner of the lost, stolen or
destroyed certificate, or such person's legal representative, to give the
Corporation a bond sufficient to indemnify it against any claim that may be made
against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
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ARTICLE VII
MISCELLANEOUS
Section 1. Fiscal Year. The fiscal year of the Corporation shall begin on
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the first day of January of each year and end on the last day of December of
each year.
Section 2. Seal. The corporate seal shall be in the form adopted by the
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Board of Directors. Said seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise. The seal may be affixed
by any officer of the Corporation to any instrument executed by authority of the
Corporation, and the seal when so affixed may be attested by the signature of
any officer of the Corporation.
Section 3. Waiver of Notice of Meetings of Stockholders, Directors,
---------- --------------------------------------------------------------
Committees and Subcommittees. Any written waiver of notice signed by the person
- ----------------------------
entitled to notice, or a waiver by electronic transmission by the person
entitled to notice, whether before or after the time stated therein, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a
meeting for the express purpose of objecting at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose, of any
regular or special meeting of the stockholders, directors, or members of a
committee or subcommittee of directors need be specified in any written waiver
of notice or any waiver by electronic transmission.
Section 4. Form of Records. Any records maintained by the Corporation in
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the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The Corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
Section 5. Amendments. The Board of Directors shall have the power to
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adopt, amend or repeal these By-Laws. These By-Laws may be adopted, amended or
repealed by action of the stockholders entitled to vote at any regular meeting
of the stockholders or at any special meeting of the stockholders if notice of
such proposed adoption, amendment or repeal be contained in the notice of such
special meeting.
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