eLoyalty Corp. Contracts
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By-Laws - eLoyalty Corp.
BY-LAWS
OF
ELOYALTY CORPORATION
i
<PAGE> 2
BY-LAWS
OF
ELOYALTY CORPORATION
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I - OFFICES AND RECORDS...................................................-1-
Section 1.1. Delaware Office........................................-1-
Section 1.2. Other Offices..........................................-1-
Section 1.3. Books and Records......................................-1-
ARTICLE II - STOCKHOLDERS.........................................................-1-
Section 2.1. Annual Meeting.........................................-1-
Section 2.2. Special Meeting........................................-2-
Section 2.3. Place of Meeting.......................................-2-
Section 2.4. Notice of Meeting......................................-2-
Section 2.5. Quorum and Adjournment.................................-2-
Section 2.6. Voting and Proxies.....................................-3-
Section 2.7. Notice of Stockholder Business and Nominations.........-4-
Section 2.8. Stockholder Vote Required..............................-6-
Section 2.9. Inspectors of Elections; Opening and Closing the Polls.-6-
Section 2.10. Fixing Date of Determination of Stockholders of Record.-7-
Section 2.11. List of Stockholders Entitled to Vote..................-7-
ARTICLE III - BOARD OF DIRECTORS..................................................-8-
Section 3.1. General Powers.........................................-8-
Section 3.2. Regular Meetings.......................................-8-
Section 3.3. Special Meetings.......................................-8-
Section 3.4. Notice.................................................-8-
Section 3.5. Quorum.................................................-9-
Section 3.6. Vacancies..............................................-9-
Section 3.7. Executive and Other Committees.........................-9-
Section 3.8. Removal...............................................-10-
Section 3.9. Telephonic Meetings...................................-10-
Section 3.10. Informal Action by Directors..........................-10-
Section 3.11. Reliance upon Records.................................-10-
Section 3.12. Interested Directors..................................-11-
Section 3.13. Compensation..........................................-11-
Section 3.14. Presumption of Assent.................................-11-
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<TABLE>
<S> <C> <C>
ARTICLE IV - OFFICERS............................................................-12-
Section 4.1. Elected Officers......................................-12-
Section 4.2. Other Officers........................................-12-
Section 4.3. Resignation and Removal...............................-12-
Section 4.4. Vacancies.............................................-12-
Section 4.5. Chairman..............................................-12-
Section 4.6. President.............................................-13-
Section 4.7. Vice Presidents and Assistant Vice Presidents.........-13-
Section 4.8. Secretary.............................................-13-
Section 4.9. Treasurer.............................................-13-
Section 4.10. Assistant Officers....................................-13-
Section 4.11. Compensation..........................................-14-
ARTICLE V - CONTRACTS AND PROXIES................................................-14-
Section 5.1. Contracts.............................................-14-
Section 5.2. Proxies...............................................-14-
ARTICLE VI - INDEMNIFICATION AND INSURANCE.......................................-15-
ARTICLE VII - STOCK CERTIFICATES AND TRANSFERS...................................-17-
ARTICLE VIII - MISCELLANEOUS PROVISIONS..........................................-17-
Section 8.1. Fiscal Year...........................................-17-
Section 8.2. Dividends.............................................-17-
Section 8.3. Seal..................................................-17-
ARTICLE IX - AMENDMENTS..........................................................-18-
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BY-LAWS
OF
ELOYALTY CORPORATION
(June 22, 1999)
Incorporated under the Laws of the State of Delaware
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1. DELAWARE OFFICE
The principal office of eLoyalty Corporation (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 The Corporation
Trust Company, 1209 Orange Street, Wilmington, Delaware.
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 from time to time 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 outside the State
of Delaware at such place or places as may from time to time be designated by
the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETING
The annual meeting of stockholders of the Corporation shall be held at
such place, either within or without the State of Delaware, and at such time and
date as the Board of Directors, by resolution, shall determine for the purpose
of electing directors and for the transaction of such other business as may be
properly brought before the meeting. If the Board fails to determine the time,
date and place of meeting, the annual meeting of stockholders shall be held at
the principal office of the Corporation on the first Thursday in May commencing
in 2000. If the date of the annual meeting shall fall upon a weekend or legal
holiday, the meeting shall be held on the next succeeding business day.
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SECTION 2.2. SPECIAL MEETING
Subject to the rights of the holders of any Preferred Stock (as defined
in the Certificate of Incorporation of the Corporation) to elect additional
directors under specific circumstances, special meetings of the stockholders 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").
SECTION 2.3. PLACE OF MEETING
The Board of Directors may designate the place of meeting for any
meeting of the stockholders. If no designation is made by the Board, the place
of meeting shall be the principal office of the Corporation.
SECTION 2.4. NOTICE OF MEETING
Written or printed notice, stating the place, day and hour of a meeting
and the purpose or purposes for which the meeting is called, shall be prepared
and delivered by the Corporation not less than ten days nor more than sixty days
before the date of the meeting, either personally or by mail, to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail with
postage thereon prepaid, addressed to the stockholder at such stockholder's
address as it appears on the stock transfer books of the Corporation. Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporation's notice of meeting.
Any previously scheduled meeting of the stockholders may be postponed by
resolution of the Board of Directors upon public notice given prior to the time
previously scheduled for such meeting of stockholders.
SECTION 2.5. QUORUM AND ADJOURNMENT
Except as otherwise provided by law or by the Certificate of
Incorporation, 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 a majority of the voting power of the shares of such class or series shall
constitute a quorum for the transaction of such business. The chairman of the
meeting or a majority of the shares of Voting Stock so represented 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 or
a majority of the shares of such class or series so represented may adjourn the
meeting with respect to such specified business). Notice need not be given of
any such adjourned meeting if the date, time and place thereof are announced at
the meeting at which the adjournment is taken. At the adjourned meeting any
business may be transacted which might have been transacted at the original
meeting. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the adjourned meeting in accordance with Section 2.4 of these By-Laws.
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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. VOTING AND PROXIES
(A) Voting Rights of other Corporations. Voting Stock standing in the
name of another corporation and entitled to vote may be voted by such officer,
agent or proxy as the By-Laws or other internal regulations of such other
corporation may prescribe or, in the absence of such provision, as the Board of
Directors or comparable body of such other corporation may determine.
(B) Voting Rights of Fiduciaries. Voting Stock standing in the name of
a deceased person, a minor, an incompetent or a debtor in a case under Title 11,
United States Code, and entitled to vote may be voted by an administrator,
executor, guardian, conservator, debtor-in-possession or trustee, as the case
may be, either in person or by proxy, without transfer of such shares into the
name of the official or other person so voting.
(C) Voting Rights of Pledgors. A stockholder whose Voting Stock is
pledged shall be entitled to vote such stock unless on the transfer records of
the Corporation the pledgor has expressly empowered the pledgee to vote such
shares, in which case only the pledgee, or such pledgee's proxy, may represent
such shares and vote thereon.
(D) Voting Rights of Joint Owners. If Voting Stock is held of record in
the names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise, or if
two or more persons have the same fiduciary relationship respecting the same
shares, unless the Secretary is given written notice to the contrary and is
furnished with a copy of the instrument or order appointing them or creating the
relationship wherein it is so provided, their acts with respect to voting shall
have the following effect: (i) if only one votes, such act binds all; (ii) if
more than one votes, the act of the majority so voting binds all; and (iii) if
more than one votes, but the vote is evenly split on any particular matter, each
faction may vote such Voting Stock proportionally, or any person voting the
shares, or a beneficiary, if any, may apply to the Court of Chancery of the
State of Delaware or such other court as may have jurisdiction to appoint an
additional person to act with the persons so voting such Voting Stock, which
shall then be voted as determined by a majority of such persons and the person
appointed by the Court. If the instrument so filed shows that any such tenancy
is held in unequal interests, a majority or even split for the purpose of this
subsection shall be a majority or even split in interest.
(E) The Corporation's Rights Respecting the Voting Stock. Voting Stock
belonging to the Corporation, or to another corporation a majority of the shares
entitled to vote in the election of directors of such other corporation of which
are held by the Corporation, shall not be voted at any meeting of stockholders
and shall not be counted in the total number of outstanding shares for the
purpose of determining whether a quorum is present. Nothing in this Section 2.6
shall limit the right of the Corporation to vote shares of Voting Stock held by
it in a fiduciary capacity.
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(F) Proxies. At all meetings of stockholders, a stockholder may vote by
proxy executed in writing by the stockholder or as may be permitted by law, or
by such stockholder's duly authorized attorney-in-fact. Such proxy must be filed
with the Secretary of the Corporation or such stockholder's representative at or
before the time of the meeting. No such proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. A duly
executed proxy shall be irrevocable if it states that it is irrevocable and if,
and only as long as, it is coupled with an interest sufficient in law to support
an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the meeting and voting in person or by filing with the
Secretary an instrument in writing revoking the proxy or another duly executed
proxy bearing a later date.
SECTION 2.7. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS
(A) Annual Meetings 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 By-Laws, (b) by or at the direction of the
Board of Directors 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 (2) and (3) of this paragraph (A) of this By-Law 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 paragraph (A)(1) of
this By-Law, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation and such other business must otherwise be a
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal office of the Corporation not
earlier than the close of business on the 100th calendar day nor later than the
close of business on the 75th calendar day prior to the date of the first
anniversary of the preceding year's annual meeting; provided, however, that in
the event that the date of an annual meeting is more than 30 calendar days
before or more than 75 calendar days after the date of the first anniversary of
the preceding year's annual meeting, notice by the stockholder to be timely must
be so delivered not earlier than the close of business on the 100th calendar day
prior to such annual meeting and not later than the close of business on the
later of (i) the 75th calendar day prior to such annual meeting and (ii) the
10th calendar day after the day on which public announcement of the date of such
annual meeting is first made by the Corporation. For the purpose of determining
whether a stockholder's notice shall have been delivered in a timely manner for
the 2000 annual meeting, the date of the first anniversary of the preceding
year's meeting shall be deemed to be May 6, 2000. Such stockholder's notice
shall set forth (a) as to each person whom the stockholder proposes to nominate
for election or reelection as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the regulations promulgated thereunder, 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
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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 stock transfer 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.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2)
of this By-Law to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors made by the
Corporation at least 80 calendar days prior to the date of the first anniversary
of the preceding year's annual meeting, a stockholder's notice required by this
By-Law shall also be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be delivered to the
Secretary at the principal office of the Corporation not later than the close of
business on the 10th calendar day after the day on which such public
announcement is first made by the Corporation. For the purpose of determining
whether a stockholder's notice shall have been delivered in a timely manner for
the 2000 meeting, the first anniversary of the preceding year's meeting shall be
deemed to be May 6, 2000.
(B) Special Meetings of Stockholders. Subject to the rights of the
holders of any Preferred Stock, only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting pursuant to Section 2.4 of these
By-Laws. Subject to the rights of the holders of any Preferred Stock,
nominations of persons for election to the Board of Directors may be made at a
special meeting of stockholders at which directors are to be elected pursuant to
the Corporation's notice of meeting (1) by or at the direction of the Board 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 this By-Law 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 may be made at such a special meeting of stockholders if
the stockholder's notice as required by paragraph (A)(2) of this By-Law shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 100th calendar day prior to such
special meeting and not later than the close of business on the later of (i) the
75th calendar day prior to such special meeting and (ii) the 10th calendar day
after the day on which public announcement is first made of the date of such
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
(C) General. (1) Subject to the rights of the holders of any Preferred
Stock, only persons who are nominated in accordance with the procedures set
forth in this By-Law shall be eligible to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been
brought before the meeting in accordance with the procedures set forth in this
By-Law. Except as otherwise provided by law, the Certificate of Incorporation or
these By-Laws, the
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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 or
proposed in accordance with the procedures set forth in this By-Law and, if any
proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "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 this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. So long as a stockholder proponent otherwise complies with
the requirements of this By-Law, nothing in this By-Law shall be deemed to
affect any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 2.8. STOCKHOLDER VOTE REQUIRED
Election of directors at all meetings of the stockholders at which
directors are to be elected shall be by written ballot. Subject to the rights of
the holders of any series of Preferred Stock to elect additional directors under
specific circumstances, directors shall be elected by a plurality of the votes
of the shares of Voting Stock present in person or represented by proxy at the
meeting and entitled to vote on the election of directors. Except as otherwise
provided by law, the Certificate of Incorporation or these By-Laws, in all
matters other than the election of directors, the affirmative vote of the
majority of the shares of Voting Stock present in person or represented by proxy
at the meeting and entitled to vote on the subject matter shall be the act of
the stockholders.
SECTION 2.9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS
(A) Inspectors of Election. The Board of Directors by resolution shall
appoint one or more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities, including, without
limitation, as officers, employees, agents or representatives of the
Corporation, to act at a meeting of stockholders and make a written report
thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails 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 inspectors to act 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.
(B) Duties. The inspectors shall (i) ascertain the number of shares of
Voting Stock outstanding and the voting power of each, (ii) determine the number
of shares of Voting Stock
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present in person or by proxy at such meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and retain for a
reasonable period a record of the disposition of any challenges made to any
determination by the inspectors and (v) certify their determination of the
number of such shares present in person or by proxy at such meeting and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist them in the performance of their duties.
(C) Opening and Closing the Polls. The chairman or secretary of the
meeting shall 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 a
meeting. No ballots, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Court of Chancery of the State of Delaware upon application by any
stockholder shall determine otherwise.
SECTION 2.10. FIXING DATE OF DETERMINATION OF STOCKHOLDERS OF RECORD
(A) Fixing the Record Date. In order that the Corporation may determine
the stockholders entitled (i) to notice of or to vote at any meeting of
stockholders or any adjournment thereof, (ii) to receive payment of any dividend
or other distribution or allotment of any rights, (iii) to exercise any rights
in respect of any change, conversion or exchange of stock or (iv) to take,
receive or participate in any other action, the Board of Directors may fix a
record date, which shall not be earlier than the date upon which the resolution
fixing the record date is adopted by the Board and which (1) in the case of a
determination of stockholders entitled to notice of or to vote at any meeting of
stockholders or adjournment thereof, shall, unless otherwise required by law, be
not more than 60 nor less than ten days before the date of such meeting; and (2)
in the case of any other action, shall be not more than 60 days before such
action.
(B) If Record Date is Not Fixed. If no record date is fixed, (i) 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, and (ii) the record date for
determining stockholders for any other purpose shall be at the close of business
on the day on which the Board of Directors adopts the resolution relating
thereto.
(C) Adjourned Meetings. 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, but the Board of Directors may fix a new record date
for the adjourned meeting.
SECTION 2.11. LIST OF STOCKHOLDERS ENTITLED TO VOTE
The Secretary shall prepare, at least ten days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in
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the notice of meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall also 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. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders.
ARTICLE III
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 expressly conferred upon them by these By-Laws, the Board 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 of Incorporation or by these
By-Laws required to be exercised or done by the stockholders.
SECTION 3.2. REGULAR MEETINGS
A regular meeting of the Board of Directors may be held without other
notice than this By-Law immediately after, and at the same place as, each annual
meeting of stockholders. The Board may, by resolution, provide the time and
place for the holding of additional regular meetings without other notice than
such resolution.
SECTION 3.3. SPECIAL MEETINGS
Special meetings of the Board of Directors may be called by the
Chairman, the Secretary or two or more directors. The person or persons
authorized to call special meetings of the Board of Directors may fix the place
and time of the meetings.
SECTION 3.4. NOTICE
Notice of each special meeting of the Board shall be given by the
Secretary. Notice of each such meeting shall state the date, time and place of
the meeting, and shall be delivered to each director either personally or by
telephone, telegraph, cable, or similar means, at least twenty-four hours before
the time at which such meeting is to be held or mailed by first-class mail,
postage prepaid, addressed to the director at his residence or usual place of
business, at least five days before the day on which such meeting is to be held.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board need be specified in the notice of such meeting,
except for amendments to these By-Laws as provided under Article IX hereof. A
meeting may be held at any time without notice if all of the directors are
present or if those not present waive notice of the meeting in writing, either
before or after such meeting.
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SECTION 3.5. QUORUM
A whole number of directors equal to at a majority of the Whole Board
shall constitute a quorum for the transaction of business, but if at any meeting
of the Board 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. The directors
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum.
SECTION 3.6. VACANCIES
Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specific circumstances, and unless the Board
of Directors otherwise determines, vacancies resulting from death, resignation,
retirement, disqualification, removal from office or other cause, and newly
created directorships resulting from any increase in the authorized number of
directors, may be filled only by the affirmative vote of a majority of the
remaining directors, though less than a quorum of the Board, and each director
so chosen shall hold office for a term expiring at the annual meeting of
stockholders at which the term of office of the class to which he or she has
been elected expires and until his or her successor has been duly elected and
qualified or until his or her earlier death, resignation or removal from office.
No decrease in the number of authorized directors constituting the Whole Board
shall shorten the term of any incumbent director.
SECTION 3.7. EXECUTIVE AND OTHER COMMITTEES
The Board of Directors may, by resolution adopted by a majority of the
Whole Board, designate an Executive Committee to exercise, subject to applicable
provisions of law, all of the powers of the Board in the management of the
business and affairs of the Corporation when the Board is not in session,
including without limitation the power to declare dividends, to authorize the
issuance of the Corporation's capital stock and to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law of
the State of Delaware, and may, by resolution similarly adopted, designate one
or more other committees. The Executive Committee and each such other committee
shall consist of two or more directors of the Corporation. The Board 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. Any
such committee may to the extent permitted by law exercise such powers and shall
have such responsibilities as shall be specified in the designating resolution.
In the absence or disqualification of any member of such committee or
committees, the member or members thereof present at any meeting and not
disqualified from voting, whether or not constituting a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent or disqualified member. Each committee shall keep written minutes of
its proceedings and shall report such proceedings to the Board when required.
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A majority of any committee may determine its action and fix the time
and place of its meetings, unless the Board shall otherwise provide. Notice of
such meetings shall be given to each member of the committee in the manner
provided for in Section 3.4 of these By-Laws. The Board shall have power at any
time to fill vacancies in, to change the membership of or to dissolve any such
committee. Nothing herein shall be deemed to prevent the Board from appointing
one or more committees consisting in whole or in part of persons who are not
directors of the Corporation; provided, however, that no such committee shall
have or may exercise any authority of the Board of Directors.
SECTION 3.8. REMOVAL
Subject to the rights of the holders of any series of Preferred Stock
to elect additional directors under specific circumstances, any director, or the
entire Board of Directors, may be removed from office at any time, but only for
cause and only by 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.
SECTION 3.9. TELEPHONIC MEETINGS
Directors, or any committee of directors designated by the Board, may
participate in a meeting of the Board or such committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this Section 3.9 shall constitute presence in person at such
meeting.
SECTION 3.10. INFORMAL ACTION BY DIRECTORS
Unless otherwise provided in the Certificate of Incorporation or these
By-Laws, 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 such committee, as the case may be, consent
thereto in writing (which may be in counterparts), and the written consent or
consents are filed with the minutes of proceedings of the Board or such
committee.
SECTION 3.11. RELIANCE UPON RECORDS
Every director, and every member of any committee of the Board of
Directors, shall, in the performance of his or her duties, be fully protected in
relying in good faith upon the 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, or by any other person
as to matters the director or member 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, including, but not limited
to, such records, information, opinions, reports or statements as to the value
and amount of the assets, liabilities and/or net profits of the Corporation, or
any other facts pertinent to the existence and amount of surplus or other funds
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from which dividends might properly be declared and paid, or with which the
Corporation's capital stock might properly be purchased or redeemed.
SECTION 3.12. INTERESTED DIRECTORS
A director who is directly or indirectly a party to a contract or
transaction with the Corporation, or is a director or officer of or has a
financial interest in any other corporation, partnership, association or other
organization which is a party to a contract or transaction with the Corporation,
may be counted in determining whether a quorum is present at any meeting of the
Board or a committee thereof at which such contract or transaction is considered
or authorized, and such director may participate in such meeting and vote on
such authorization if the material facts as to such director's relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board or the committee, and the Board or committee in good faith authorizes the
contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors are less than a
quorum.
SECTION 3.13. COMPENSATION
The Board of Directors shall have the authority to fix the
compensation, including fees and reimbursement of expenses, of directors for
services to the Corporation in any capacity, provided that no such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
SECTION 3.14. PRESUMPTION OF ASSENT
Unless otherwise provided by the laws of the State of Delaware, a
director who is present at a meeting of the Board of Directors or a committee
thereof at which action is taken on any matter shall be presumed to have
assented to the action taken unless his or her dissent shall be entered in the
minutes of such meeting or unless he or she shall file his or her written
dissent to such action with the person acting as secretary of such meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the Secretary immediately after the adjournment of such meeting. Such right
to dissent shall not apply to a director who voted in favor of such action.
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ARTICLE IV
OFFICERS
SECTION 4.1. ELECTED OFFICERS
Unless otherwise determined by the Board of Directors, the officers of
the Corporation may consist of the Chairman, the President, one or more Vice
Presidents, the Secretary and the Treasurer. Any two or more offices may be held
by the same person. The Board may designate the Chairman or the President as the
Chief Executive Officer of the Corporation. Such officers shall be elected from
time to time by the Board to hold office until their respective successors shall
have been duly elected and qualified, or until death, resignation or removal, as
hereafter provided in these By-Laws.
SECTION 4.2. OTHER OFFICERS
The Board may from time to time elect, or the Chairman may appoint,
such other officers (including one or more Assistant Vice Presidents, Assistant
Secretaries and Assistant Treasurers) and such agents, as may be necessary or
desirable for the conduct of the business of the Corporation. Such other
officers and agents shall have such duties and shall hold their offices for such
terms as shall be provided in these By-Laws or as may be prescribed by the Board
or by the Chairman.
SECTION 4.3. RESIGNATION AND REMOVAL
Any officer or agent of the Corporation may resign at any time by
giving a written notice of resignation to the Board of Directors, the Chairman,
the President or the Secretary. Any such resignation shall take effect at the
time specified therein or, if the time when it shall become effective shall not
be specified therein, immediately upon its receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Any officer or agent of the Corporation may be removed, either with
or without cause, at any time, by a vote of the majority of the Whole Board, or,
except in the case of an officer or agent elected by the Board, by the Chairman.
Such removal shall be without prejudice to the contractual rights, if any, of
the person so removed.
SECTION 4.4. VACANCIES
A vacancy in any office, whether arising from death, resignation,
removal or any other cause, may be filled for the unexpired portion of the term
of the office which shall be vacant in the manner prescribed in these By-Laws
for the regular election or appointment of such office.
SECTION 4.5. CHAIRMAN
The Chairman shall have the general control and management of the
business and affairs of the Corporation, under the direction of the Board of
Directors. He shall have power: (i) to select
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and appoint all necessary officers and employees of the Corporation except such
officers as under these By-Laws are to be elected by the Board; (ii) to remove
all appointed officers or employees whenever he shall deem it necessary, and to
make new appointments to fill the vacancies; and (iii) to suspend from office
for cause any elected officer, which shall be forthwith declared in writing to
the Board. The Chairman shall have such other authority and shall perform such
other duties as may be determined by the Board.
SECTION 4.6. PRESIDENT
The President shall have such authority and perform such duties
relative to the business and affairs of the Corporation as may be determined by
the Board of Directors or the Chairman. In the absence of the Chairman, the
President shall preside at meetings of the stockholders and of the directors. If
the Board shall not have elected a Chairman, the President shall have such
authority and shall perform such additional duties as in these By-Laws is
provided for the office of Chairman.
SECTION 4.7. VICE PRESIDENTS AND ASSISTANT VICE PRESIDENTS
Each Vice President and each Assistant Vice President shall have such
powers and perform all such duties as from time to time may be determined by the
Board of Directors, the Chairman, the President or the senior officer to whom
such officer reports.
SECTION 4.8. SECRETARY
The Secretary shall record the proceedings of all meetings of the Board
of Directors, the committees of the Board and the stockholders; shall see that
all notices are duly given in accordance with the provisions of these By-Laws
and as required by law; shall be custodian of the records and the seal of the
Corporation and, if necessary or appropriate, affix and attest the seal to all
documents to be executed on behalf of the Corporation under its seal; shall see
that the books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and filed; and in
general, shall perform all the duties incident to the office of Secretary and
such other duties as from time to time may be determined by the Board, the
Chairman or the President.
SECTION 4.9. TREASURER
The Treasurer shall exercise general supervision over the receipt,
custody and disbursement of corporate funds. The Treasurer shall have such
further powers and duties as may be determined from time to time by the Board of
Directors, the Chairman or the President.
SECTION 4.10. ASSISTANT OFFICERS
Any Assistant Secretary or Assistant Treasurer elected or appointed as
heretofore provided shall perform the duties and exercise the powers of the
Secretary and Treasurer, respectively, in their absence or inability to act, and
shall perform such other duties and have such
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other powers as the Board of Directors, the Chairman, the President, the
Secretary or the Treasurer (as the case may be) may from time to time prescribe.
SECTION 4.11. COMPENSATION
The compensation of the officers of the Corporation for their services
as such officers shall be fixed from time to time by the Board of Directors;
provided, however, that the Board may by resolution delegate to the Chairman the
power to fix compensation of non-elected officers and agents appointed by the
Chairman. An officer of the Corporation shall not be prevented from receiving
compensation by reason of the fact that such officer is also a director of the
Corporation, but any such officer who shall also be a director shall not have
any vote in the determination of such officer's compensation.
ARTICLE V
CONTRACTS AND PROXIES
SECTION 5.1. CONTRACTS
Except as otherwise required by law, the Certificate of Incorporation
or these By-Laws, any contracts or other instruments may be executed and
delivered in the name and on behalf of the Corporation by such officer or
officers (including any assistant officer) of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board of Directors may determine. The
Chairman, the President or any Vice President may execute bonds, contracts,
deeds, leases and other instruments to be made or executed for or on behalf of
the Corporation. Subject to any restrictions imposed by the Board, the Chairman,
the President or any Vice President of the Corporation may delegate contractual
power to others under his jurisdiction, it being understood, however, that any
such delegation of power shall not relieve such officer of responsibility with
respect to the exercise of such delegated power.
SECTION 5.2. PROXIES
Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman, the President or any Vice President may from time to
time appoint an attorney or attorneys or agent or agents of the Corporation, in
the name and on behalf of the Corporation, to cast the votes which the
Corporation may be entitled to cast as the holder of stock or other securities
or interests in any other corporation or entity, any of whose stock or other
securities or interests may be held by the Corporation, at meetings of the
holders of the stock or other securities or interests, of such other corporation
or entity, or to consent in writing, in the name of the Corporation as such
holder, to any action by such other corporation or entity, and may instruct the
person or persons so appointed as to the manner of casting such votes or giving
such consent, and may execute or cause to be executed in the name and on behalf
of the Corporation and under its
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corporate seal or otherwise, all such written proxies or other instruments as he
may deem necessary or proper in the premises.
ARTICLE VI
INDEMNIFICATION AND INSURANCE
(A) Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is involved in any action, suit, or
proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a
director, officer, employee or agent of any other corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the General Corporation Law of the State of Delaware as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Corporation to provide
broader indemnification rights than said law permitted the Corporation to
provide prior to such amendment), against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) reasonably
incurred by such person in connection therewith, and such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators; provided, however, that except as provided in paragraph (B) of
this Article VI with respect to proceedings seeking to enforce rights to
indemnification, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated by
such person only if such proceeding (or part thereof) initiated by such person
was authorized by the Board of Directors of the Corporation. The Corporation
may, by action of its Board of Directors, provide indemnification to employees
and agents of the Corporation with the same scope and effect as the
indemnification of directors and officers provided for in this paragraph (A).
(B) Recovery of Unpaid Indemnification. If a claim under paragraph (A)
of this By-Law is not paid in full by the Corporation within 30 days after a
written claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant also shall be
entitled to be paid the expense of prosecuting such claim. It shall be a defense
to any such action (other than an action brought to enforce a claim for expenses
incurred in defending any proceeding in advance of its final disposition where
the required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the General Corporation Law of the State of Delaware for
the Corporation to indemnify the claimant for the amount claimed, but the burden
of proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of
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Directors, independent legal counsel or 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 the General Corporation Law of the
State of Delaware, nor an actual determination by the Corporation (including the
Board of Directors, independent legal counsel or 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.
(C) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this By-Law shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, provision of
the Certificate of Incorporation, By-Laws, agreement, vote of stockholders or
disinterested directors or otherwise.
(D) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
(E) Contractual Right. The right to indemnification conferred in this
By-Law shall be a contract right and shall include the right to be paid by the
Corporation the expenses incurred in defending any such proceeding in advance of
its final disposition; provided, however, that if the General Corporation Law of
the State of Delaware requires, the payment of such expenses incurred by a
director or officer in his or her capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan), in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking by or on behalf of
such director or officer to repay all amounts so advanced if it shall ultimately
be determined that such director or officer is not entitled to be indemnified
under this By-Law or otherwise.
(F) Amendment or Repeal. Any amendment or repeal of this Article VI
shall not adversely affect any right or protection existing hereunder in respect
of any act or omission occurring prior to such amendment or repeal.
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ARTICLE VII
STOCK CERTIFICATES AND TRANSFERS
(A) Certificated Shares and Transfers. 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, unless it shall be determined by, or pursuant to, a resolution
adopted by the Board of Directors that the shares representing such interest be
uncertificated. The shares of the stock of the Corporation shall be transferred
on the books of the Corporation by the holder thereof in person or by such
person's attorney, 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.
(B) Accepted Signatures. The 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 were such officer, transfer agent or registrar at the date of
issue.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year, unless
otherwise determined by resolution of the Board of Directors.
SECTION 8.2. 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 law and its Certificate of Incorporation.
SECTION 8.3. SEAL
The corporate seal shall have inscribed thereon the name of the
Corporation and the words "Corporate Seal, Delaware". The seal may be used by
causing it, or a facsimile thereof, to be impressed or affixed or reproduced or
otherwise.
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ARTICLE IX
AMENDMENTS
These By-Laws may be amended, added to, rescinded or repealed at any
meeting of the Board of Directors or of the stockholders, provided 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 By-Laws 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 the stock required by law, the Certificate of Incorporation or these
By-Laws, 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
By-Laws.
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