EXHIBIT 3.3
AMENDED AND RESTATED
BYLAWS
OF
CONVERSION SERVICES INTERNATIONAL, INC.
(FORMERLY KNOWN AS LCS GROUP, INC.)
(EFFECTIVE AS OF JANUARY 30, 2004)
ARTICLE 1
OFFICES
SECTION 1.01. Registered Office. The registered office of Conversion
Services International, Inc., a Delaware corporation (the "Corporation"), in the
State of Delaware shall be located at 615 South Dupont Highway, Dover, Delaware
19901. The name and address of the Corporation's registered agent at such
address is National Corporate Research, Ltd., 615 South Dupont Highway, Dover,
Delaware 19901.
SECTION 1.02. Other Offices. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
SECTION 1.03. Books. The books of the Corporation may be kept within or
without the State of Delaware as the Board of Directors may from time to time
determine or the business of the Corporation may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.01. Time and Place of Meetings.
(a) All meetings of stockholders shall be held at such place, either
within or without the State of Delaware, on such date and at such time as may be
determined from time to time by the Board of Directors (or the Chairman in the
absence of a designation by the Board of Directors).
(b) The Board of Directors, in its sole discretion, may determine that
such meetings be held wholly or partially by means of remote communication. For
any meeting of stockholders to be held by remote communication, the Corporation
shall: (i) implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by remote communication is a
stockholder or proxy holder, (ii) implement reasonable measures to provide such
stockholders and proxy holders a reasonable opportunity to participate in the
meeting and to vote on matters submitted to the stockholders, including an
opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (iii) if any stockholder or proxy holder
votes or takes other action at the meeting by means of remote communication, a
record of such vote or other action shall be maintained by the Corporation.
SECTION 2.02. Annual Meetings. An annual meeting of stockholders shall be
called by the Board of Directors at a time of its choosing and shall be held for
the election of directors and for the transaction of such other business as may
properly be brought before such meeting. Stockholders 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.
SECTION 2.03. Special Meetings. Special meetings of stockholders for any
proper purpose or purposes may be called at any time by the Board of Directors
or the Chairman of the Board of Directors and shall be called by the Secretary
of the Corporation whenever the stockholders of record owning a majority of the
then issued and outstanding capital stock of the Corporation entitled to vote on
matters to be submitted to stockholders of the Corporation shall request
therefor (either by written instrument signed by a majority, by resolution
adopted by a vote of the majority or by a ballot submitted by electronic
transmission, provided that any such electronic transmission shall set forth or
be submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder or proxy holder). Any
such written request shall state a proper purpose or purposes of the meeting and
shall be delivered to the President or Secretary of the Corporation.
SECTION 2.04. Notice of Meetings and Adjourned Meetings; Waivers of
Notice.
(a) Whenever stockholders are required or permitted to take any action at
a meeting, a written notice of the meeting of stockholders shall be given which
shall state the hour, means of remote communication, if any, date and place, if
any, thereof, and, in the case of a special meeting, the purpose or purposes for
which the meeting is called. Unless otherwise provided by law, such notice shall
be delivered either personally or by mail, not less than ten (10) or more than
sixty (60) days before the date of the meeting, to each stockholder of record
entitled to vote at such meeting. Unless these Bylaws otherwise require, when a
meeting is adjourned to another time or place (whether or not a quorum is
present), notice need not be given of the adjourned meeting 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 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 (30) days, or 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.
(b) A written waiver of any such notice signed by the person entitled
thereto, 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 an individual at a meeting in person, by
proxy, or by remote communication shall constitute a waiver of notice of such
meeting, except when the person attends the 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. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice. Neither the business to be transacted at, nor the purpose of, an
annual or special meeting of stockholders need be specified in any written
waiver of notice or any waiver by electronic transmission unless so required by
the Certificate of Incorporation or these Bylaws.
SECTION 2.05. Quorum. Unless otherwise provided under the Certificate of
Incorporation or these Bylaws and subject to the Delaware General Corporation
Law ("Delaware Law"), the presence, in person, by proxy, or by remote
communication, of the holders of record of a majority of the then issued and
outstanding capital stock of the Corporation entitled to vote at a meeting of
stockholders shall be necessary and sufficient to constitute a quorum for the
transaction of business. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, any officer entitled to preside
at or act as secretary of a meeting of stockholders shall adjourn the meeting,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. When a meeting is adjourned to another time or place, if
any (whether or not a quorum is present), notice need not be given of the
adjourned meeting if the time, place, if any, thereof, and the means of remote
communications, if any, are announced at the meeting at which the adjournment is
taken. At such adjourned meeting at which a quorum shall be present or
represented any business may be transacted which might have been transacted at
the meeting as originally notified.
SECTION 2.06. Voting and Proxies.
(a) Unless otherwise provided in the Certificate of Incorporation and
subject to Delaware Law, each stockholder shall be entitled to one vote for each
then issued and outstanding share of capital stock held by such stockholder. Any
share of capital stock of the Corporation held by the Corporation shall have no
voting rights. Unless otherwise provided in Delaware Law, the Certificate of
Incorporation or these Bylaws, the affirmative vote of a majority of the shares
of Common Stock of the Corporation present, in person, by means of remote
communication, or by written proxy, at a meeting of stockholders and entitled to
vote on the subject matter shall be the act of the stockholders. If the
Certificate of Incorporation provides for more or less than one vote for any
share, on any matter, every reference in these Bylaws to a majority or other
proportion of stock shall refer to such majority or other proportion of the
votes of such stock.
(b) Any stockholder entitled to vote at a meeting of stockholders or to
express consent or dissent to a corporate action in writing without a meeting
may authorize another person or persons to act for him by written proxy,
provided that the instrument authorizing such proxy to act shall have been
executed in writing (which shall include faxing) or by electronic transmission
by the stockholder himself or by such stockholder's duly authorized attorney and
no such proxy shall be voted or acted upon after three (3) years from its date
of authorization, unless the proxy provides for a longer period.
SECTION 2.07. Action by Consent.
(a) Unless otherwise provided in the Certificate of Incorporation, any
action required to be taken at any annual or special meeting of stockholders, or
any action which may be taken at any annual or special meeting of stockholders,
may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding capital stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted
and shall be delivered to the Corporation by delivery to its registered office
in 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.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those 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 as provided in
Section 2.07(b) hereof.
(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 (60) days of
the earliest dated consent delivered in the manner required by this Section and
Delaware Law 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 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 (including via
the Internet) 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 purpose of this Section 2.07, provided that any such telegram, cablegram or
other electronic transmission sets forth or is delivered with information from
which the Corporation can determine (i) 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
(ii) 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, 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
for written consents 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 office 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.
(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 2.08. Organization. At each meeting of stockholders, the Chairman
of the Board of Directors, if one shall have been elected, or in his or her
absence or if one shall not have been elected, the director designated by the
vote of the majority of the stockholders present at such meeting, shall act as
chairman of the meeting. The Secretary of the Corporation (or in his or her
absence or inability to act, the person whom the chairman of the meeting shall
appoint secretary of the meeting) shall act as secretary of the meeting and keep
the minutes thereof.
SECTION 2.09. Order of Business. The order of business at all meetings of
stockholders shall be as determined by the chairman of the meeting.
SECTION 2.10. Inspectors of Election.
(a) The Board of Directors, in advance of any meeting of the stockholders,
may appoint one or more inspectors to act at the meeting or any adjournment
thereof. If any of the inspectors so appointed shall fail to appear or act or if
inspectors shall not have been so appointed, the person presiding at a meeting
of the stockholders may, and on the request of any stockholder entitled to vote
thereat shall, appoint one or more inspectors. 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 at such meeting with strict impartiality and
according to the best of his or her ability.
(b) The inspectors, if so appointed, shall determine the number of shares
of capital stock outstanding and the voting power of each, the shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the person presiding at the meeting or any
stockholder entitled to vote thereat, the inspectors shall make a report in
writing of any challenge, question or matter determined by them and execute a
certificate of any fact found by them. No director or candidate for office shall
act as an inspector of an election of directors.
SECTION 2.11. Lists of Stockholders. The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten (10) days
before every meeting of the stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, showing the
address of each stockholder and the number and class of shares held by each.
Nothing contained in this Section 2.11 shall require the Corporation to include
electronic mail addresses or other electronic contact information on such list.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least ten (10) days prior to the
meeting: (i) on a reasonably accessible electronic network, provided that the
information required to gain access to such list is provided with the notice of
the meeting, or (ii) during ordinary business hours, at the principal place of
business of the Corporation. In the event that the Corporation determines to
make the list available on an electronic network, the Corporation may take
reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a place, then
the list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
If the meeting is to be held wholly or partially 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.
ARTICLE 3
DIRECTORS
SECTION 3.01. General Powers. Except as otherwise provided in Delaware 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 3.02. Number, Election and Term of Office.
(a) The number of directors which shall constitute the whole Board shall
be fixed from time to time by resolution of the Board of Directors but shall not
be fewer than three (3) or more than nine (9). The directors shall be elected at
the annual meeting of the stockholders, and each director so elected shall hold
office until his or her successor is elected and qualified or until his or her
earlier death, resignation or removal. Directors need not be stockholders.
(b) All elections of directors shall be held by written ballot, except as
provided in the Certificate of Incorporation, or Section 2.02 and Section 3.12
hereof; if authorized by the Board of Directors, such requirement of a written
ballot shall be satisfied by a ballot submitted by electronic transmission,
provided that any such electronic transmission must either set forth or be
submitted with information from which it can be determined that the electronic
transmission was authorized by the stockholder or proxy holder.
SECTION 3.03. Quorum and Manner of Acting. Unless the Certificate of
Incorporation or these Bylaws require a greater number, a majority of the total
number of directors shall constitute a quorum for the transaction of business,
and the affirmative vote of a majority of the directors deemed to be present at
a meeting at which a quorum is present shall be the act of the Board of
Directors. When a meeting is adjourned to another time or place, if any (whether
or not a quorum is present), notice need not be given of the adjourned meeting
if the time, place, if any, thereof, and the means of remote communications, if
any, by which directors may be deemed to be present in person and vote at such
meeting are announced at the meeting at which the adjournment is taken. At the
adjourned meeting, the Board of Directors may transact any business which might
have been transacted at the original meeting. If a quorum shall not be present
at any meeting of the Board of Directors the directors present thereat shall
adjourn the meeting, from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
SECTION 3.04. Time and Place of Meetings. The Board of Directors shall
hold its meetings at such place, either within or without the State of Delaware,
or by remote communication, and at such time as may be determined from time to
time by the Board of Directors (or the Chairman in the absence of a
determination by the Board of Directors).
SECTION 3.05. Annual Meeting. The Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business, as soon as practicable after each annual meeting of stockholders, on
the same day and at the same place where such annual meeting shall be held.
Notice of such meeting need not be given. In the event such annual meeting is
not so held, the annual meeting of the Board of Directors may be held at such
place either within or without the State of Delaware, or by remote
communication, on such date and at such time as shall be specified in a notice
thereof given as hereinafter provided in Section 3.07 herein or in a waiver of
notice thereof signed by any director who chooses to waive the requirement of
notice.
SECTION 3.06. Regular Meetings. After the place and time of regular
meetings of the Board of Directors shall have been determined and notice thereof
shall have been once given to each member of the Board of Directors, regular
meetings may be held without further notice being given.
SECTION 3.07. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President and shall be called
by the Chairman of the Board, President or Secretary on the written request of
any two (2) directors. Notice of special meetings of the Board of Directors
shall be given to each director at least two (2) days before the date of the
meeting in such manner as is determined by the Board of Directors. A written
waiver of any such notice, signed by the director entitled hereto, 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 director at a meeting shall constitute a waiver of notice of such meeting,
except when the director attends the 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.
SECTION 3.08. Committees. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more committees, each
committee to consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee,
the member or members present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to the
extent provided in the resolution of the Board of Directors, 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 (except where action
of the full Board of Directors is mandatory required by law or by resolution of
the full Board of Directors), and may authorize the seal of the Corporation to
be affixed to all papers which may require it. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
SECTION 3.09. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions are filed with
the minutes of the proceedings of the Board, or committee. Such filings 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 3.10. Telephonic or Electronic Meetings. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, 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, as the
case may be, by means of conference telephone, remote communication, or similar
communications equipment by means of which all persons participating in the
meeting can hear, speak, and/or communicate with each other, and such
participation in a meeting shall constitute presence in person at the meeting.
SECTION 3.11. Resignation. Any director may resign at any time by giving
written notice to the Board of Directors or to the Secretary of the Corporation.
The resignation of any director shall take effect upon receipt of notice thereof
or at such later time as shall be specified in such notice; and unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
SECTION 3.12. Vacancies. Unless otherwise provided in the Certificate of
Incorporation, vacancies and newly created directorships resulting from any
increase in the authorized number of directors to be elected by all the
stockholders having the right to vote as a single class may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director. Whenever the holders of any class or classes of stock
or series thereof are entitled to elect one or more directors by the Certificate
of Incorporation, vacancies and newly created directorships of such class or
classes or series may be filled by a majority of directors elected by such class
or classes or series thereof then in office, or by a sole remaining director so
elected. Each director so chosen shall hold office until his or her successor is
elected and qualified, or until his or her earlier death, resignation or
removal. If there are no directors in office, then an election of directors may
be held in accordance with Delaware Law. Unless otherwise provided in the
Certificate of Incorporation, 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 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 the
filling of other vacancies.
SECTION 3.13. Removal. Any director or the entire Board of Directors may
be removed, with or without cause, at any time by the affirmative vote of the
holders of a majority of the outstanding capital stock of the Corporation
entitled to vote and the vacancies thus created may be filled in accordance with
Section 3.12 herein.
SECTION 3.14. Compensation. Unless otherwise restricted by the Certificate
of Incorporation or these Bylaws, the Board of Directors shall have authority to
fix the compensation of directors, including fees and reimbursement of expenses.
ARTICLE 4
OFFICERS
SECTION 4.01. Principal Officers. The principal officers of the
Corporation shall be a President, one or more Vice Presidents of any
classification, a Treasurer and a Secretary. The Corporation may also have such
other principal officers, including a Chief Operating Officer and Chief
Financial Officer, as the Board of Directors may in its discretion appoint. One
person may hold the offices and perform the duties of any two or more of said
offices.
SECTION 4.02. Election, Term of Office and Remuneration. The principal
officers of the Corporation shall be elected annually by the Board of Directors
at the annual meeting thereof. Each such officer shall hold office until his or
her successor is elected and qualified, or until his or her earlier death,
resignation or removal. The remuneration of all officers of the Corporation
shall be fixed by the Board of Directors. Any vacancy in any office shall be
filled in such manner as the Board of Directors shall determine.
SECTION 4.03. Chairman of the Board. If elected, the Chairman of the Board
of Directors shall preside at all meetings of the stockholders and directors;
and he shall have such other powers and duties as the Board of Directors shall
prescribe.
SECTION 4.04. Chief Executive Officer. The Chief Executive Officer shall
have responsibility for the general management and direction of the business of
the Corporation and for the execution of all orders and resolutions of the Board
of Directors. In addition to the powers prescribed in these Bylaws, the Chief
Executive Officer shall have all of the powers usually vested in the chief
executive officer of a corporation and such other powers as may be prescribed
from time to time by the Board of Directors. He may delegate any of his or her
powers and duties to any other officer with such limitations as he may deem
proper.
SECTION 4.05. President. The President may execute deeds, conveyances,
notes, bonds and other contracts either or without the attestation of the
Secretary required thereon and either with or without the seal of the
Corporation. In addition to the powers prescribed in these Bylaws, the President
shall have all of the powers as may be prescribed from time to time by the Board
of Directors. If the President is not designed as the chief executive officer,
the President shall have such powers and perform such duties as may be delegated
to her by the Chief Executive Officer, and shall be vested with all the powers
and authorized to perform all the duties of the Chief Executive Officer in his
or her absence or inability to act. The President may delegate any of her powers
and duties to any other officer with such limitations as she may deem proper.
SECTION 4.06. Vice Presidents. The Vice Presidents, in the order of their
rank and seniority in office, in the absence or disability of the President
shall perform the duties and exercise the powers of the President, and shall
perform such other duties as the Board of Directors shall prescribe.
SECTION 4.07. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all votes and
the minutes of all proceedings in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, notice of all meetings of the stockholders and
special meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or President, under whose
supervision the Secretary shall be; he shall keep the seal the Corporation and,
when authorized by the Board, affix the same to any instrument requiring it and,
when so affixed, it shall be attested by his or her signature or by the
signature of the Treasurer or an Assistant Secretary or an Assistant Treasurer.
SECTION 4.08. Treasurer. The Treasurer shall have supervision over the
corporate funds and securities and shall keep or cause to be kept full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit or cause to be deposited all moneys and other
valuable effects in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors, shall disburse the
funds of the Corporation as may be ordered by the Board, taking proper vouchers
for such disbursements, and shall render to the Chief Executive Officer and
directors, at the regular meetings of the Board, or whenever they may require
it, an account of all the transactions under his or her supervision as Treasurer
and of the financial condition of the Corporation. If required by the Board of
Directors, the Treasurer and persons acting under this supervision shall give
the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board for the faithful performance of their duties and for
the restoration to the Corporation, in case of their death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and
other property of whatever kind in their possession or under their control
belonging to the Corporation.
SECTION 4.09. Subordinate Officers. In addition to the principal officers
enumerated in this Article IV, the Corporation may have one or more Assistant
Treasurers and Assistant Secretaries and such other subordinate officers, agents
and employees as the Board of Directors may deem necessary, each of whom shall
hold office for such period as the Board of Directors may from time to time
determine. The Board of Directors may delegate to any principal officer the
power to appoint and to remove any such subordinate officers, agents or
employees.
SECTION 4.10. Removal. Except as otherwise permitted with respect to
subordinate officers, any officer may be removed, with or without cause, at any
time, by resolution adopted by the Board of Directors.
SECTION 4.11. Resignations. Any officer may resign at any time by giving
written notice to the Board of Directors (or to a principal officer if the Board
of Directors has delegated to such principal officer the power to appoint and to
remove such officer). The resignation of any officer shall take effect upon
receipt of notice thereof or at such later time as shall be specified in such
notice; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
SECTION 4.12. Powers and Duties. The officers of the Corporation shall
have such powers and perform such duties incident to each of their respective
offices and such other duties as may from time to time be conferred upon or
assigned to them by the Board of Directors.
ARTICLE 5
EXECUTION OF INSTRUMENTS AND DEPOSIT OF CORPORATE FUNDS
SECTION 5.01. Execution of Instruments Generally. The Board of Directors
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation, and such authorization may be general or confined to specific
instances.
SECTION 5.02. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to its credit in such banks or
trust companies or with such bankers or other depositories as the Board of
Directors may select, or as may be selected by any officer or officers or agent
or agents authorized so to do by the Board of Directors. Endorsements for
deposit to the credit of the Corporation in any of its duly authorized
depositories shall be made in such manner as the Board of Directors from time to
time may determine.
ARTICLE 6
CERTIFICATES OF STOCK SECTION
6.01. Form and Execution of Certificates. The interest of each stockholder
of the Corporation shall be evidenced by a certificate or certificates for
shares of stock in such form as the Board of Directors may from time to time
prescribe. The certificates of stock of each class shall be consecutively
numbered and signed by the Chairman of the Board or the Chief Executive Officer
and by the President or the Treasurer or an Assistant Treasurer or the Secretary
or an Assistant Secretary, and shall bear the corporate seal or a printed or
engraved facsimile thereof. Any or all of the signatures on the certificate may
be a facsimile. The Board of Directors shall have the power to appoint one or
more transfer agents and/or registrars for the transfer or registration of
certificates of stock of any class, and may require stock certificates to be
countersigned or registered by one or more of such transfer agents and/or
registrars.
SECTION 6.02. Transfer of Shares. The shares of the stock of the
Corporation shall be transferable on the books of the Corporation by the holder
thereof in person or by his or her attorney lawfully constituted, upon surrender
for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature as
the Corporation or its agents may reasonably require. A record shall be made of
each transfer. The Board of Directors shall have the power and authority to make
such rules and regulations as it may deem necessary or proper concerning the
issue, transfer and registration of certificates for shares of stock of the
Corporation.
SECTION 6.03. Closing of Transfer Books. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board may determine,
preceding the date of any meeting of stockholders or the date for the payment of
any dividend or the date for the allotment of rights or the date when the
issuance, change, conversion or exchange of capital stock shall go into effect,
during which time no transfer of stock on the books of the Corporation may be
made.
SECTION 6.04. Fixing the Record Date.
(a) In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which record date shall not be more than sixty
(60) nor less than ten (10) days before the date of such meeting. If no record
date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall
be at the close of business on the 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 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 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 (10) days after the date
upon which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by Delaware Law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in 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
Delaware Law, the record date for determining stockholders entitled to consent
to corporate action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action.
(c) 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 be not more than sixty (60) days prior to
such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
SECTION 6.05. Lost or Destroyed Certificates. A new certificate of stock
may be issued in the place of any certificate previously issued by the
Corporation, alleged to have been lost, stolen, destroyed or mutilated, and the
Board of Directors may, in its discretion, require the owner of such lost,
stolen, destroyed or mutilated certificate, or his or her legal representative,
to give the Corporation a bond, in such sum as the Board of Directors may
direct, in order to indemnify the Corporation against any claims that may be
made against it in connection therewith.
SECTION 6.06. Consideration and Payment. The capital stock may be issued
for such consideration, not less than the par value of any such stock expressed
in dollars, as shall be fixed by the Board of Directors. Payment of such
consideration may be made, in whole or in part, in money, other tangible or
intangible property, labor or services performed. No certificate shall be issued
for any share until the share is fully paid.
ARTICLE 7
GENERAL PROVISIONS
SECTION 7.01. Dividends. Subject to limitations contained in Delaware Law
and the Certificate of Incorporation, the Board of Directors may declare and pay
dividends upon the shares of capital stock of the Corporation, which dividends
may be paid either in cash, in property or in shares of the capital stock of the
Corporation. Before payment of any dividend, the Board of Directors may set
aside out of any funds available for dividends such sum or sums as the Board of
Directors, in its absolute discretion, deems proper as a reserve fund to meet
contingencies or for equalizing dividends or to repair or maintain property or
to serve such other purposes conducive to the interests of the Corporation
SECTION 7.02. Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
SECTION 7.03. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
SECTION 7.04. Voting of Stock Owned by the Corporation. The Board of
Directors may authorize any person, on behalf of the Corporation, to attend,
vote at and grant proxies to be used at any meeting of stockholders of any
Corporation (except this Corporation) in which the Corporation may hold stock.
SECTION 7.05. Amendments. These Bylaws or any of them may be altered,
amended or repealed, or new bylaws may be made, by the stockholders entitled to
vote thereon at any annual or special meeting thereof or by the Board of
Directors.
SECTION 7.06. Indemnification. The Corporation shall, to the fullest
extent permitted by Delaware Law, indemnify it officers and members of the Board
of Directors and may, if authorized by the Board, indemnify its employees and
agents and any and all persons whom it shall have power to indemnify against any
and all expenses, liabilities or other matters.
SECTION 7.07 Notice.
(a) Whenever notice is required to be given by law, the Certificate of
Incorporation or these Bylaws, such notice may be mailed or given by a form of
electronic transmission consented to by the person to whom the notice is given.
Any such consent shall be revocable by such person by written notice to the
Corporation. Any such consent shall be deemed revoked if: (i) the Corporation is
unable to deliver by electronic transmission two consecutive notices in
accordance with such consent, and (ii) such inability becomes known to the
secretary or an assistant secretary of the Corporation or to the transfer agent
or other person responsible for the giving of notice; provided, however, the
inadvertent failure to treat such inability as a revocation shall not invalidate
any meeting or other action.
(b) Notice given pursuant to these Bylaws shall be deemed given: (i) if
mailed, when deposited in the United States mail, postage pre-paid, addressed to
the person entitled to such notice at his or her address as it appears on the
books and records of the Corporation, (ii) if by facsimile telecommunication,
when directed to a number at which such person has consented to receive notice;
(iii) if by electronic mail, when directed to an electronic mail address at
which such person has consented to receive notice; (iv) if by a posting on an
electronic network together with separate notice to such person of such specific
posting, upon the later of (A) such posting and (B) the giving of such separate
notice; and (v) if by any other form of electronic transmission, when directed
to such person. An affidavit of the Secretary or an Assistant Secretary or of
the transfer agent or other agent of the Corporation that the notice has been
given by a form of electronic transmission shall, in the absence of fraud, be
prima facie evidence of the facts stated herein.
(c) For purposes of these Bylaws, "electronic transmission" means any form
of communication, not directly involving the physical transmission of paper,
that creates a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process.
SECTION 7.08. Waiver of Notice. Whenever notice is required to be given by
law, the Certificate of Incorporation or these Bylaws, a waiver thereof
submitted by electronic transmission or in writing signed by the person entitled
to notice, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of an individual at a meeting, in person, by
written proxy, or by means of remote communication, 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, and the
execution by a person of a consent in writing or by electronic transmission in
lieu of meeting shall constitute a waiver of notice of the action taken by such
consent. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders, directors, or members of a committee of the Board
of Directors need be specified in any such waiver or notice.
SECTION 7.09. Counterparts. The Corporation, through its authorized
representatives, the Board of Directors and the stockholders, shall have the
power to execute all instruments, including without limitation, consents of the
Board of Directors, consents of the stockholders and agreements of the
Corporation, in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
A facsimile, telecopy or other reproduction of such instrument may be executed
by one or more parties thereto, and an executed copy of such instrument may be
delivered by one or more parties thereto by facsimile or similar instantaneous
electronic transmission device pursuant to which the signature of or on behalf
of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes as of the date first written in
such instrument.
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