Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
DIGITAL FUSION, INC.
Incorporated under the Laws of the State of Delaware
As Amended February 8, 2006
Article 1 Offices And Records
Section 1.1 Delaware Office
The registered office of the Corporation in the State of Delaware shall
be located in the City of Wilmington, County of New Castle, and the name and
address of its registered agent is Corporation Service Company, 2711 Centerville
Road, Suite 400, Wilmington, Delaware 19808.
Section 1.2 Other Offices
The Corporation may have such other offices, either within or without the
State of Delaware, as the Board of Directors may designate or as the business of
the Corporation may from time to time require.
Section 1.3 Books and Records
The books and records of the Corporation may be kept at the Corporation's
headquarters in Huntsville, Alabama or at such other locations outside the State
of Delaware as may from time to time be designated by the Board of Directors.
Article 2 Stockholders
Section 2.1 Annual Meeting
The annual meeting of the stockholders of the Corporation shall be held
at such date and time as may be fixed from time to time by resolution of the
Board of Directors.
Section 2.2 Special Meetings
Except as otherwise required by applicable law, and subject to the rights
of the holders of any series of preferred stock as set forth in the
Corporation's Certificate of Incorporation, as amended and/or restated from time
to time (the "Certificate"), special meetings of the stockholders of the
Corporation may be called only by the Board of Directors pursuant to a
resolution adopted by a majority of the total number of directors which the
Corporation would have if there were no vacancies (the "Whole Board") or by the
Chairman of the Board.
Section 2.3 Place of Meeting
The Board of Directors may designate the place of meeting for any annual
or special meeting of the stockholders. If no place is designated by the Board
of Directors, the place of meeting shall be the principal office of the
Corporation.
Section 2.4 Notice of Meeting
Except as otherwise provided by applicable law, notice of each annual or
special meeting of the stockholders shall be prepared and delivered by the
Corporation to each stockholder of record entitled to vote at such meeting not
less than ten days nor more than sixty daysbefore the date of the meeting. Such
notice shall state the place, day and hour of the meeting, the means of remote
communications, if any, by which the stockholders and proxy holders may be
deemed to be present and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called. Notice may be
delivered in any manner permitted by law, including personally, by mail, or by
electronic transmission. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail with postage thereon prepaid, addressed
to the stockholder at his address as it appears on the stock transfer books of
the Corporation. Such further notice shall be given as may be required by law.
Meetings may be held without notice if all stockholders entitled to vote are
present, or if notice is waived by those not present. Any stockholder present in
person at any meeting of the stockholders shall be deemed to have waived notice
of the time and place of such meeting, except when such stockholder 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. Any previously scheduled meeting of the stockholders may be postponed
or rescheduled by resolution of the Board of Directors upon public notice given
prior to the time previously scheduled for such meeting of stockholders.
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Section 2.5 Quorum and Adjournment
Except as otherwise provided by law or by the Certificate, the holders of
a majority of the voting power of the outstanding shares of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
represented in person or by proxy, shall constitute a quorum at a meeting of
stockholders, except that when specified business is to be voted on by a class
or series voting as a class, the holders of at least a majority of the shares of
such class or series shall constitute a quorum for the transaction of such
business. The chairman of the meeting may adjourn the meeting from time to time,
whether or not there is such a quorum (or in the case of specified business to
be voted on by a class or series, the chairman of the meeting may adjourn the
meeting with respect to such specified business). No notice of the time and
place of adjourned meetings need be given if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than thirty days or a new record date is fixed for the
adjourned meeting, in which case a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 2.6 Proxies
At any meeting of the stockholders, every stockholder entitled to vote
may vote in person or by proxy authorized by an instrument in writing or by an
electronic transmission permitted by law and filed in accordance with the
procedure established for the meeting. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this Section 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 2.7 Notice of Stockholder Business and Nominations
(a) Annual Meeting of Stockholders
(1) Nominations of persons for election to the Board of Directors of
the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of
stockholders (A) pursuant to the Corporation's notice of meeting
delivered pursuant to Section 2.4 of these Bylaws, (B) by or at
the direction of the Board of Directors or the Chairman of the
Board or (C) by any stockholder of the Corporation who is
entitled to vote at the meeting, who complied with the notice
procedures set forth in clauses (B) and (C) of this subsection
(a) and these Bylaws and who was a stockholder of record at the
time such notice was delivered to the Secretary of the
Corporation.
(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder, pursuant to clause (C) of
the preceding paragraph, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation.
To be timely, a stockholder's notice shall be actually delivered
to the Secretary at the principal executive offices of the
Corporation not less than ninety days nor more than one hundred
and twenty days before the first anniversary of the preceding
year's annual meeting; except that (A) if the date of the annual
meeting is advanced by more than twenty days, or delayed by more
than seventy days, from such anniversary date, then notice must
be so delivered not earlier than the one hundred and twentieth
day before such annual meeting and not later than the close of
business on the later of the ninetieth day before such annual
meeting or the tenth day following the day on which public
announcement of the date of such meeting is first made, and (B)
if the number of directors to be elected to the Board of
Directors of the Corporation is increased and a public
announcement is not made by the Corporation at least one hundred
days before the first anniversary of the preceding year's annual
meeting naming all of the nominees for director or specifying
the size of the increased Board of Directors, a stockholder's
notice required by these Bylaws shall also be considered timely,
but only with respect to nominees for any new positions created
by such increase, if it shall be so delivered not later than the
close of business on the tenth day following the day on which
such public announcement is first made by the Corporation. In no
event shall the adjournment of an annual meeting commence a new
time period for the giving of a stockholder's notice as
described above.
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(3) To be valid, a stockholder's notice must set forth (A) as to
each person whom the stockholder proposes to nominate for
election or reelection as a director, all information relating
to such person that is required to be disclosed in solicitations
of proxies for election of directors, or is otherwise required,
in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), including
such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected;
(B) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (C) as
to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i)
the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the
class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such
beneficial owner.
(b) Special Meetings of Stockholders
Only such business as shall have been brought before the special meeting
of stockholders pursuant to the Corporation's notice of meeting pursuant to
Section 2.4 of these Bylaws shall be conducted at such meeting. If the
Corporation's notice of meeting states that directors are to be elected at the
special meeting of stockholders, then nominations of persons for election to the
Board of Directors may be made (1) by or at the direction of the Board of
Directors or (2) by any stockholder of the Corporation who is entitled to vote
at the meeting, who complies with the notice procedures set forth in Section
2.7(a) of these Bylaws and who is a stockholder of record at the time such
notice is delivered to the Secretary of the Corporation. Nominations by
stockholders of persons for election to the Board of Directors may be made at
such a special meeting of stockholders if the stockholder's notice as described
by subsections (1), (2) and (3) of Section 2.7(a) of these Bylaws shall be
actually delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the one hundred and twentieth day before such
special meeting and not later than the close of business on the later of the
ninetieth day before such special meeting or the tenth day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the adjournment of a special meeting commence a new
time period for the giving of a stockholder's notice as described above.
(c) General
(1) Only persons who are nominated in accordance with the procedures
set forth in these Bylaws shall be eligible to stand for
election as directors at a meeting of stockholders and to serve
as directors. Only such business as shall have been brought
before the meeting of stockholders in accordance with the
procedures set forth in these Bylaws shall be conducted at a
meeting of stockholders. Except as otherwise provided by
applicable law, the Certificate or these Bylaws, the chairman of
the meeting shall have the power and duty to determine whether a
nomination or any business proposed to be brought before the
meeting was made in accordance with the procedures set forth in
these Bylaws and, if the chairman determines that any proposed
nomination or business is not in compliance with these Bylaws,
to declare that such defective proposal or nomination is out of
order, shall not be presented for stockholder action and shall
be disregarded.
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(2) For purposes of Section 2.7 of these Bylaws, "public
announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of Section 2.7 of these
Bylaws, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in these
Bylaws. Nothing in these Bylaws shall be deemed to affect any
rights (A) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act, or (B) of the holders of any series of
preferred stock to elect directors if so provided under an
applicable Preferred Stock Designation (as defined in the
Certificate).
Section 2.8 Voting
Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by written ballot. Except as otherwise set
forth in the Certificate with respect to the right of the holders of any series
of preferred stock or any other series or class of stock to elect additional
directors under specified circumstances, directors shall be elected by a
plurality of the votes cast by the holders of Common Stock, present in person or
represented by proxy. Except as otherwise provided by law, the Certificate or
these Bylaws, all matters other than the election of directors properly
submitted to the stockholders at any meeting shall be decided by the affirmative
vote of a majority of the votes cast affirmatively or negatively on the matter.
The vote upon any matter other than the election of directors shall be by
written ballot only if so ordered by the chairman of the meeting. Whenever a
written ballot is required, a ballot may be submitted in writing or by an
electronic transmission permitted by law and filed in accordance with the
procedure established for the meeting. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this paragraph may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used, provided that such copy, facsimile telecommunication
or other reproduction shall be a complete reproduction of the entire original
writing or transmission.
Section 2.9 Inspectors of Elections; Opening and Closing the Polls; Conducting
of Business
(a) Inspectors of Elections
The Corporation shall appoint one or more individuals, who may include
individuals who serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives of the
Corporation, to act as inspectors at the meeting and make a written report
thereof. The Corporation may appoint one or more individuals as alternate
inspectors to replace any inspector who may fail to act. If no inspector or
alternate has been appointed to act, or if all inspectors or alternates who have
been appointed are unable to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more individuals to act as inspectors at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed for inspectors of election by the General
Corporation Law of the State of Delaware.
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(b) Opening and Closing the Polls
The chairman of the meeting or the Corporate Secretary shall fix and
announce at the meeting the date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at the meeting.
(c) Conducting of Business
The chairman of the meeting shall determine the order of business and the
procedure at the meeting, including such regulation of the manner of voting and
the conduct of discussion as seem to such chairman to be in order.
Section 2.10 Voting List
At least ten days before every stockholder meeting, the Corporation
shall make available for inspection a complete list of the stockholders entitled
to vote at such meeting, arranged in alphabetical order, with the address of and
number of shares held by each, which list, for at least ten days prior to such
meeting, shall be kept on file at the registered office of the Corporation and
shall be subject to inspection by any stockholder, and copying at such
stockholder's expense, at any time during normal business hours. Such list shall
also be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any stockholder during the entire time of the
meeting.
Article 3 Board Of Directors
Section 3.1 General Powers
The business and affairs of the Corporation shall be managed by or under
the direction of its Board of Directors. In addition to the powers and
authorities by these Bylaws expressly conferred upon them, the Board of
Directors may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by law or by the Certificate or by these Bylaws
required to be exercised or done by the stockholders.
Section 3.2 Number and Term
Subject to the rights of the holders of any series of preferred stock as set
forth in the Certificate, to elect directors under specified circumstances, the
number of directors shall be fixed from time to time exclusively pursuant to a
resolution adopted by a majority of the Whole Board, but shall consist of not
more than fifteen nor less than three directors. No decrease in the number of
directors constituting the Whole Board shall shorten the term of any incumbent
director. At each annual meeting of stockholders, the stockholders shall elect
directors equal to the number of directors then constituting the Whole Board.
Each director, including those elected in accordance with this Section 3.2 and
those elected or appointed in accordance with Section 3.9 of these Bylaws, shall
be elected to a term that expires at the annual meeting of the stockholders of
the Corporation next following such director's election. Notwithstanding the
term to which each director is elected, each director shall serve as a director
until the first to occur among the following: the director's successor is duly
elected and qualified; the director resigns, dies or is determined to be
mentally incompetent; or the director is removed from the Board of Directors by
the stockholders.
Section 3.3 Regular Meetings
A regular annual meeting of the Board of Directors shall be held without
notice other than these Bylaws on the same date, and at the same place, as each
annual meeting of stockholders or on such other day, at such other place and at
such time as the Board of Directors may determine. The Board of Directors may
from time to time, by resolution, provide the time and place for the holding of
additional regular meetings without notice other than such resolution.
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Section 3.4 Special Meetings
Special meetings of the Board of Directors shall be called at the request
of the Chairman of the Board or a majority of the Whole Board. The person or
persons authorized to call special meetings of the Board of Directors may fix
the place and time of the meetings.
Section 3.5 Notice
Notice of any special meeting shall be given to each director at his or
her business or residence in writing, or by telegram or electronic transmission,
or by telephone communication. If mailed, such notice shall be deemed delivered
when deposited in the United States mails so addressed, with postage thereon
prepaid, at least three days before such meeting. If by telegram, such notice
shall be deemed delivered when the telegram is presented to the telegraph
company at least twenty-four hours before such meeting. If by facsimile or other
electronic transmission, such notice shall be deemed delivered if transmitted at
least twenty-four hours before such meeting. If by telephone, the notice shall
be deemed delivered if given at least twelve hours prior to the time set for the
meeting. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice of such meeting, except for amendments to these Bylaws as provided under
Section 8.1 hereof. A meeting may be held at any time without notice if all the
directors are present or if those not present waive notice of the meeting in
writing, either before or after such meeting. Any director present in person at
a meeting of the Board of Directors shall be deemed to have waived notice of the
time and place of such meeting, except when such 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 3.6 Action by Consent of Board of Directors
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 an electronic transmission, and the writing or writings, or
electronic transmission or transmissions, are filed with the minutes of
proceedings of the Board or committee.
Section 3.7 Meetings Other Than in Person
Members of the Board of Directors, or any committee thereof, may
participate in a meeting of the Board of Directors or such committee by means of
communications equipment which permits all persons participating in the meeting
to hear each other, and such participation in a meeting shall constitute
presence in person at such meeting.
Section 3.8 Quorum, Voting
A number of directors equal to at least a majority of the Whole Board
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board of Directors there shall be less than a quorum present, a majority
of the directors present may adjourn the meeting from time to time without
further notice. The act of the majority of the directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors.
Section 3.9 Vacancies
Subject to the rights of the holders of any series of preferred stock as
set forth in the Certificate, and unless the Board of Directors otherwise
determines, vacancies resulting from death, mental incompetence, resignation
pursuant to Section 7.6, retirement, removal from the Board of Directors by the
stockholders or other cause, and newly created directorships resulting from any
increase in the authorized number of directors, shall be filled only by the
affirmative vote of a majority of the remaining directors, though less than a
quorum of the Board of Directors, and shall not be filled by the stockholders.
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Section 3.10 Removal
Subject to the rights of the holders of any series of preferred stock as
set forth in the Certificate, a director or directors may be removed from the
Board of Directors at any time, with or without cause, by the affirmative vote
of the holders of a majority of the shares then entitled to vote at an election
of directors, voting together as a single class.
Section 3.11 Fees and Expenses
Directors shall receive such fees and expenses as the Board of Directors
shall from time to time prescribe.
Article 4 Committees
Section 4.1 Committees
The Board of Directors, by resolution passed by a majority of the Whole
Board, shall designate an Audit Committee, a Compensation Committee, and a
Governance and Nominating Committee and may from time to time designate one or
more additional committees of the Board of Directors. The Board of Directors, by
resolution passed by a majority of the Whole Board, shall establish the
membership of the committees. The Board of Directors may, by resolution passed
by a majority of the Whole Board, adopt charters and other documents to
administer its committees. Each committee will have the purposes and functions
that are assigned to it, and may exercise such powers and authorities that are
delegated to it, by the Board of Directors. The committees may each authorize
the seal of the Corporation to be affixed to all papers on which it may be
appropriate. Each committee may, from time to time, establish one or more
subcommittees.
Section 4.2 Executive Committee
The Board of Directors may, by resolution approved by a majority of the
Whole Board, designate an Executive Committee. Any Executive Committee shall
consist exclusively of three or more directors, including the Chairman of the
Board and the Chief Executive Officer. A majority of the members of the
Executive Committee shall constitute a quorum. The Executive Committee may have
and may exercise all of the powers and authority of the Board of Directors in
the management of the business and affairs of the Corporation, except any such
powers and authority that the Board of Directors specifically reserves to itself
or that are reserved to the Board of Directors by law.
Section 4.3 Committee Procedure
The committees shall keep regular minutes of their meetings, which shall
be made available to the Board of Directors. Each committee shall fix its own
rules of procedure consistent with these Bylaws. A majority of the members of a
committee or subcommittee shall constitute a quorum of that committee or
subcommittee. In the event that a member of a committee is absent or becomes
disqualified from participating as a member at a meeting of that committee, the
members of that committee who are not so disqualified, whether or not
constituting a quorum, may by unanimous affirmative vote appoint another
director to act as a member of that committee for that meeting.
Article 5 Officers
Section 5.1 Elected Officers
The elected officers of the Corporation shall be (A) a Chairman of the
Board, unless the Board of Directors specifies that the Chairman of the Board
shall not be an officer of the Corporation, (B) a Chief Executive Officer, (C) a
President , (D) a Chief Operating Officer, (E) a Chief Financial Officer, (F)
one or more Vice Presidents (including Executive Vice Presidents and Senior Vice
Presidents), (G) a Corporate Secretary, (H) a Treasurer, and (I) such other
elected officers as the Board of Directors from time to time may deem proper.
The Chairman of the Board (whether or not an elected officer of the Corporation)
shall be chosen from the directors. The other elected officers of the
Corporation may or may not be directors. All officers elected by the Board of
Directors shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article 5. The
elected officers may, as authorized by the Board of Directors, sign
certificates, contracts, and other instruments of the Corporation. Elected
officers shall have such further powers and duties as from time to time may be
delegated by the Board of Directors or by any committee thereof.
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Section 5.2 Election and Term of Office
The elected officers shall be elected annually by the Board of Directors
at the regular annual meeting of the Board of Directors. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as convenient. Each elected officer shall hold office until the time
his or her successor is duly elected and qualified, except that an elected
officer shall no longer hold office upon his or her death, mental incompetence,
resignation pursuant to Section 7.6, retirement or removal from office by the
Board of Directors. Elected officers hold their respective offices at the
pleasure of the Board of Directors and any elected officer may be removed at any
time, with or without cause, by the affirmative vote of a majority of the Board
of Directors.
Section 5.3 Chairman of the Board
The Chairman of the Board shall preside at all meetings of the
stockholders and of the Board of Directors. He or she shall make reports to the
Board of Directors and the stockholders, and shall have such other powers and
perform such other duties as are required of him or her from time to time by the
Board of Directors. The Board of Directors may specify in a resolution or
resolutions that the Chairman of the Board shall not be an officer of the
Corporation. The offices of Chairman of the Board and Chief Executive Officer
may be filled by the same individual.
Section 5.4 Chief Executive Officer
The Chief Executive Officer shall be the highest executive officer of
the corporation and shall exercise supervision over the business of the
Corporation and over its several officers, including the responsibility for
performance of all orders and resolutions adopted by the Board of Directors and
of any committee thereof are carried into effect, subject, however, to the
control of the Board of Directors. The Chief Executive Officer shall, in the
absence of, or because of the inability to act of, the Chairman of the Board,
perform all duties of the Chairman of the Board and preside at all meetings of
stockholders and of the Board of Directors. The Chief Executive Officer shall
see that all orders and resolutions of the Board of Directors and of any
committee thereof are carried into effect. He or she shall preside at all
meetings of the shareholders and at meetings of the Board of Directors, unless
the Board of Directors shall determine to elect a Chairman of the Board, in
which case the latter shall preside. The powers and duties of the Chief
Executive Officer, subject to the supervision and control of the Board of
Directors, shall be those usually appertaining to such office and whatever other
powers and duties are prescribed by these Bylaws or by the Board of Directors.
Section 5.5 President
The President shall be the second highest executive officer of the
Corporation and shall, subject to the direction of the Chief Executive Officer,
exercise supervision and control over the operations of the corporation and over
its several officers, subject, however, to the control of the Board of Directors
and the authority of the Chief Executive Officer. The President shall perform
such duties as are conferred upon him or her by these Bylaws, or as may from
time to time be assigned to him or her by the Board of Directors or the Chief
Executive Officer. At the request of the Chief Executive Officer, or in his or
her absence or disability, the President shall perform all the duties of the
Chief Executive Officer and when so acting shall have the powers of the Chief
Executive Officer.
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Section 5.6 Chief Operating Officer
The Chief Operating Officer, subject to the control of the Board of
Directors, shall have general responsibility for the business operations of the
Corporation. The Chief Operating Officer shall, in the absence of, the Chairman
of the Board, the Chief Executive Officer, and the President, perform all duties
of the Chairman of the Board and preside at all meetings of stockholders and of
the Board of Directors. The Chief Operating Officer shall see that all orders
and resolutions of the Board of Directors and of any committee thereof are
carried into effect.
Section 5.7 Chief Financial Officer
The Chief Financial Officer, subject to the control of the Board of
Directors, shall have responsibility for all financial and accounting matters,
shall perform all duties incident to the office of Chief Financial Officer and
shall have such powers and perform such other duties as may from time to time be
assigned to such office by the Board of Directors, the Chief Executive Officer
or the President. The offices of Chief Financial Officer and Treasurer may be
filled by the same individual.
Section 5.8 Vice Presidents
Section 5.7 Vice Presidents (including Executive Vice Presidents and
Senior Vice Presidents) who are elected by the Board of Directors, the Chief
Executive Officer may, from time to time, appoint Vice Presidents (including
Executive Vice Presidents and Senior Vice Presidents), who are not elected by
the Board of Directors pursuant to this Article 5, and who shall not be deemed
elected officers. Each Vice President (including any Executive Vice Presidents
and Senior Vice Presidents) shall perform such duties as shall be assigned by
the Board of Directors, the Chairman of the Board or the Chief Executive
Officer.
Section 5.9 Secretary
The Secretary shall give, or cause to be given, notice of all meetings of
stockholders and directors and all other notices required by law or by these
Bylaws, and in case of his or her absence or refusal or neglect so to do, any
such notice may be given by any person thereunto directed by the Chairman of the
Board or the Chief Executive Officer, or by the Board of Directors, upon whose
request the meeting is called as provided in these Bylaws. The Secretary shall
record the proceedings of the meetings of the Board of Directors, any committees
thereof and the stockholders of the Corporation in a book to be kept for that
purpose, have custody of and maintain the Corporation's stockholder records, and
shall perform such other duties as may be assigned to him or her by the Board of
Directors, the Chairman of the Board or the Chief Executive Officer. The
Secretary shall have the custody of the seal of the Corporation and shall affix
the seal to all papers on which it is appropriate, when authorized by the Board
of Directors, a committee of the Board of Directors, the Chairman of the Board,
the Chief Executive Officer or the President, and shall attest to the same.
Section 5.10 Treasurer
The Treasurer shall have the custody of the corporate funds and shall
keep full and accurate account of receipts and disbursement in books belonging
to the Corporation. The Treasurer shall deposit all moneys and other valuables
in the name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. The Treasurer shall disburse the funds of
the Corporation as may be ordered by the Board of Directors, the Chairman of the
Board, or the Chief Executive Officer, taking proper vouchers for such
disbursements. The Treasurer shall render to the Chairman of the Board, the
Chief Executive Officer and the Board of Directors, whenever requested, an
account of all his or her transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, the
Treasurer shall give the Corporation a bond for the faithful discharge of his or
her duties in such amount and with such surety as the Board of Directors shall
prescribe.
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Section 5.11 Compensation
The compensation of the elected officers of the Corporation shall be
determined, from time to time, by the Board of Directors.
Section 5.12 Vacancies
In case any office of an elected officer becomes vacant due to death,
mental incompetence, resignation pursuant to Section 7.6, retirement, removal
from office, or any other reason, the Board of Directors may abolish the office
(except that of President, Secretary and Treasurer) or may elect a person to
fill such vacancy.
Article 6 Stock Certificates, Transfers and Record Date
Section 6.1 Stock Certificates, Transfers and Record Date
(a) Stock Certificates
The interest of each stockholder of the Corporation shall be evidenced by
certificates for shares of stock in such form as the appropriate officers of the
Corporation may from time to time prescribe; provided, however, the Board of
Directors may authorize by resolution that some or all of any or all classes or
series of the Corporation's stock may be uncertificated shares that may be
evidenced by a book-entry system maintained by the registrar of such stock. To
the extent, if any, that such interest are represented by certificates, such
certificates of stock shall be signed, countersigned and registered in such
manner as the Board of Directors may by resolution prescribe, which resolution
may permit all or any of the signatures on such certificates to be in facsimile.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate has 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 he or she were such
officer, transfer agent or registrar at the date of issue.
(b) Transfers
Transfers of shares of the stock of the Corporation shall be made only on
the books of the Corporation upon the authorization of the holder thereof in
person or by his attorney, and if such shares are represented by a certificate
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 of the authenticity of the signature as the
Corporation or its agents may reasonably require. Transfers of uncertificated
shares shall be effected as provided by applicable law.
(c) Record Date
In order that the Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders, or to receive payment of
any dividend or other distribution or allotment of any rights or to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may, except as
otherwise required by law, fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty nor less than ten days before the
date of any meeting of stockholders, nor more than sixty days prior to the time
for such other action as described above; except that if no record date is fixed
by the Board of Directors, then the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice is given or,
if notice is waived, at the close of business on the day next preceding the day
on which the meeting is held, and, for determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of rights or
to exercise any rights of change, conversion or exchange of stock or for any
other purpose, the record date shall be at the close of business on the day on
which the Board of Directors adopts a resolution relating thereto.
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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;
except that the Board of Directors may fix a new record date for the adjourned
meeting.
Article 7 Miscellaneous Provisions
Section 7.1 Fiscal Year
The fiscal year of the Corporation shall begin on the first day of
January and end on the thirty-first day of December of each year.
Section 7.2 Dividends
The Board of Directors may from time to time declare, and the Corporation
may pay, dividends on its outstanding shares in the manner and upon the terms
and conditions provided by applicable law and the Certificate.
Section 7.3 Seal
The corporate seal shall have inscribed thereon the words "Corporate
Seal" and "Delaware", and the name of the Corporation. The seal may bear
additional text or designs approved by the Secretary.
Section 7.4 Waiver of Notice
Whenever any notice is required to be given to any stockholder or
director of the Corporation under the provisions of the General Corporation Law
of the State of Delaware, a written waiver of notice, signed by the person or
persons entitled to such notice, or a waiver by electronic transmission by such
person or persons, whether given before or after the time notice is required,
shall be deemed equivalent to the giving of such notice. Neither the business to
be transacted at, nor the purpose of, any annual or special meeting of the
stockholders of the Board of Directors need be specified in any waiver of notice
of such meeting.
Section 7.5 Audits
The accounts, books and records of the Corporation shall be audited upon
the conclusion of each fiscal year by an independent certified public accountant
selected by the Audit Committee of the Board of Directors, and it shall be the
duty of the Board of Directors to cause such audit to be made annually.
Section 7.6 Resignations
Any director or any elected officer may resign at any time by serving
written notice of such resignation on the Chairman of the Board, the President
or the Secretary, and such resignation shall be deemed to be effective as of the
close of business on the date said notice is received by the Chairman of the
Board, the President, or the Secretary, or at such later date as is stated
therein. No formal action shall be required of the Board of Directors or the
stockholders to make any such resignation effective.
Section 7.7 Reliance Upon Books, Reports and Records
Each director, each member of any committee designated by the Board of
Directors, and each officer of the Corporation shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the books of
account or other records of the Corporation and upon such information, opinions,
reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any
other person as to matters which such director, committee member or officer
reasonably believes are within such other person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Corporation.
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Section 7.8 Time Periods
In applying any provision of these Bylaws which requires that an act be
done or not be done a specified number of days prior to an event or that an act
be done during a period of a specified number of days prior to an event,
calendar days shall be used, the day of the performance of the act shall be
excluded, and the day of the event shall be included.
Article 8 Amendments
Section 8.1 Amendments
These Bylaws may be amended, added to, rescinded or repealed at any
meeting of the Board of Directors or of the stockholders, so long as notice of
the proposed change was given in the notice of the meeting and, in the case of a
meeting of the Board of Directors, in a notice given no less than twenty-four
hours prior to the meeting; provided, however, that, in the case of amendments
by stockholders, notwithstanding any other provisions of these Bylaws or any
provision of law which might otherwise permit a lesser vote or no vote, but in
addition to any affirmative vote of the holders of any particular class or
series of stock required by law, the Certificate or these Bylaws, the
affirmative vote of the holders of at least 80 percent of the voting power of
the then outstanding Voting Stock, voting together as a single class, shall be
required to alter, amend or repeal any provision of these Bylaws.
Article 9 Indemnification and Insurance
Section 9.1 Persons Eligible for Indemnification
(a) Mandatory Indemnification
Subject to the conditions of Section 9.3, the Corporation shall indemnify
any person who is or was a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was serving, or agreed to serve, as a director or officer of the
Corporation, or, at the request of the Corporation, of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted while serving in such capacity.
(b) Discretionary Indemnification
Subject to the conditions of Section 9.3, the Corporation may indemnify
any person who is or was a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact he or she is or
was serving, or agreed to serve, as an employee or agent of the Corporation, or,
at the request of the Corporation, of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to have
been taken or omitted while serving in such capacity.
Section 9.2 Amounts Eligible for Indemnification
The indemnification provided by Section 9.1 shall be from and against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the indemnitee or on his or her
behalf in connection with such action, suit or proceeding and any appeal
therefrom, except that in the case of an action or suit by or in the right of
the Corporation to procure a judgment in its favor (a) the indemnification
provided by Section 9.1 shall be limited to expenses (including attorneys' fees)
actually and reasonably incurred by such person in the defense or settlement of
such action or suit.
Section 9.3 Behavior Required
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Notwithstanding Section 9.1: (a) indemnification shall only be provided
if the indemnitee acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the Corporation, (b)
indemnification shall only be provided with respect to any criminal action, suit
or proceeding if the indemnitee had no reasonable cause to believe his or her
conduct was unlawful, and (c) no indemnification shall be made in respect of any
claim, issue or matter as to which the indemnitee shall have been adjudged to be
liable to the Corporation unless, and only to the extent that, the Delaware
Court of Chancery, or the court in which such action or suit was brought, shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court shall deem proper. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that his or her conduct was unlawful.
Section 9.4 Determinations
(a) Service
The Board of Directors (by resolution passed by a majority of the Board
of Directors), the Chairman of the Board, the Chief Executive Officer, President
or the Secretary shall have the authority to determine whether a person is or
was serving or has agreed to serve at the request of the Corporation (a) as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise, or (b) as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. If the Board of Directors
(by resolution passed by a majority of the Board of Directors), the Chairman of
the Board, the Chief Executive Officer, President or the Secretary determines
that a person is not or was not serving or has not agreed to serve at the
request of the Corporation in any capacity described in clause (a) or (b) of the
preceding sentence, then such person shall not (unless otherwise ordered by a
court) be entitled to indemnification under these Bylaws.
(b) Behavior
Any indemnification of a person entitled to indemnity under Section 9.1
(a) hereof shall (unless otherwise ordered by a court) be made by the
Corporation unless a determination is made that indemnification of such person
is not proper in the circumstances because he or she has not met the applicable
standard of conduct set forth in Section 9.3 hereof. Any indemnification of a
person entitled to indemnity under Section 9.1 (b) hereof may (unless otherwise
ordered by a court) be made by the Corporation upon a determination that
indemnification of such person is proper in the circumstances because he or she
has met the applicable standard of conduct set forth in Section 9.3 hereof. Any
such determination shall be made (1) by a majority vote of the directors who are
not parties to such action, suit or proceeding, even if less than a quorum, or
(2) by a committee of such directors designated by a majority vote of such
directors, even if less than a quorum, or (3) if there are no such directors, or
if such directors so direct, by independent legal counsel in a written opinion,
or (4) by the stockholders.
Section 9.5 Successful Defense
To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Section 9.1 hereof or in defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
Section 9.6 Advance Payment of Expenses
Expenses (including attorneys' fees) incurred by a director or officer in
defending a civil, criminal, administrative or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Corporation
as authorized in this Section. Such expenses (including attorneys' fees)
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate. The Board of
Directors may authorize the Corporation's counsel to represent a director,
officer, employee or agent in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or proceeding.
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Section 9.7 Procedure for Indemnification of Required Indemnitees
Any indemnification of a person the Corporation is required to indemnify
under Section 9.1 (a) hereof, or advance of costs, charges and expenses of a
person the Corporation is required to pay under Section 9.6 hereof, shall be
made promptly, and in any event within sixty days, upon the written request of
such person. If the Corporation fails to respond within sixty days, then the
request for indemnification shall be deemed to be approved. The right to
indemnification or advances under this Article 9 shall be enforceable by the
person the Corporation is required to indemnify under Section 9.1 (a) hereof in
any court of competent jurisdiction if the Corporation denies such request, in
whole or in part. Such person's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advance of costs, charges and expenses under Section 9.6 hereof where
the required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in Section 9.3 hereof,
but the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, its independent
legal counsel, and its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in Section 9.3 hereof, nor the fact that there has been an actual
determination by the Corporation (including its Board of Directors, its
independent legal counsel, and its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
Section 9.8 Survival; Preservation of Other Rights
The indemnification provisions of this Article 9 shall be deemed to be a
contract between the Corporation and each director, officer, employee and agent
who serves in such capacity at any time while these provisions as well as the
relevant provisions of the General Corporation Law of the State of Delaware are
in effect and any repeal or modification thereof shall not affect any right or
obligation then existing with respect to any state of facts then or previously
existing or any action, suit, or proceeding previously or thereafter brought or
threatened based in whole or in part upon any such state of facts. Such a
"contract right" may not be modified retroactively without the consent of such
director, officer, employee or agent.
The indemnification provided by this Article 9 shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any other Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his or her official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 9.9 Insurance
The Corporation shall purchase and maintain insurance on behalf of any
person who is or was or has agreed to serve as a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against, and incurred by, him or
her or on his or her behalf in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to indemnify
him or her against such liability under the provisions of this Article 9, so
long as such insurance is available on acceptable terms, which determination
shall be made by a vote of a majority of the Whole Board.
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Section 9.10 Savings Clause
If this Article 9 or any portion hereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each director or officer and may indemnify each employee
or agent of the Corporation as to costs, charges and expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative, including an action by or in the right of the Corporation, to the
full extent permitted by any applicable portion of this Article 9 that shall not
have been invalidated and to the full extent permitted by applicable law.
* * * * *
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