Exhibit 3.1
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ARTEMIS INTERNATIONAL SOLUTIONS CORPORATION
INCORPORATED UNDER THE LAWS
OF THE STATE OF DELAWARE
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AMENDED AND RESTATED BY-LAWS
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AS ADOPTED ON JANUARY 25, 2002
_______________________________________________________________________________
AMENDED AND RESTATED BY-LAWS
OF
ARTEMIS INTERNATIONAL SOLUTIONS CORPORATION
ARTICLE I
OFFICES
1.1 REGISTERED OFFICE.
The registered office of Artemis International Solutions Corporation
(the "Corporation") in the State of Delaware shall be at 0 Xxxx Xxxxxxxxxx
Xxxxxx, Xxxx xx Xxxxx, Xxxxxx of Kent 19901, and the registered agent in
charge thereof shall be National Registered Agents, Inc.
1.2 OTHER OFFICES.
The Corporation may also have an office or offices at any other place
or places within or outside the State of Delaware as the Board of Directors
(the "Board") may from time to time determine or the business of the
Corporation may require.
1.3 BOOKS.
The books of the Corporation may be kept within or without of the
State of Delaware as the Board may from time to time determine or the business
of the Corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
2.1 TIME AND PLACE OF MEETINGS.
All meetings of stockholders shall be held at such place, either
within or without of the State of Delaware, on such date and at such time as
may be determined from time to time by the Board (or the Chairman of the Board
in the absence of a designation by the Board).
2.2 ANNUAL MEETINGS.
Annual meetings of the stockholders, commencing with the year 2001,
shall be held for the election of directors and for the transaction of such
other business as may properly come before the meeting.
2.3 SPECIAL MEETINGS.
Special meetings of the stockholders for any purpose or purposes may
be called by the Board, the Chairman of the Board, the Chief Executive Officer
or the President and may not be called by any other person. Notwithstanding
the foregoing, whenever holders of one or more classes or series of Preferred
Stock shall have the right, voting separately as a class or series, to elect
directors, such holders may call special meetings of such holders pursuant to
the terms of the certificate of designation for such classes or series.
2.4 NOTICE OF MEETINGS AND ADJOURNED MEETINGS; WAIVERS OF NOTICE.
(a) Except as otherwise provided by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be amended
("Delaware Law"), the Certificate of Incorporation of the Corporation (the
"Certificate") or these By-laws, notice of each annual or special meeting of
the stockholders shall be given to each stockholder of record entitled to vote
at such meeting not less than 10 nor more than 60 days before the day on which
the meeting is to be held, by delivering written notice thereof to such
stockholder personally, or by mailing a copy of such notice, postage prepaid,
directly to the stockholder at such stockholder's address as it appears in the
records of the Corporation, or by transmitting such notice thereof at such
address by telegraph, cable or other telephonic transmission. Every such
notice shall state the place, the date and hour of the meeting, and, in case
of a special meeting, the purpose or purposes for which the meeting is called.
Unless these By-laws otherwise require, when a meeting is adjourned to another
time or place (whether or not a quorum is present), notice need not be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting, the
Corporation may transact any business which might have been transacted at the
original meeting. Notwithstanding the foregoing, 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 meeting not less than 10
nor more than 60 days before the day on which the meeting is to be held.
(b) A written waiver of any such notice signed by the person entitled
thereto, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends 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. Except as otherwise provided in these By-laws, neither the business
to be transacted at, nor the purpose of, any meeting of the stockholders need
be specified in any such notice or waiver of notice. Business transacted at
any special meeting of stockholders shall be limited to the purposes stated in
the notice.
2.5 QUORUM.
Unless otherwise provided by the Certificate or these By-laws and
subject to Delaware Law, at each meeting of stockholders the holders of a
majority of the issued and outstanding shares of capital stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum for the transaction of business.
2.6 ORGANIZATION.
Unless otherwise determined by the Board, at each meeting of the
stockholders, the Chairman of the Board, if one shall have been elected, (or
in his absence or if one shall not have been elected, the Chief Executive
Officer, or in his absence or if one shall not have been elected, the
President) shall act as chairman of the meeting. The Secretary (or in his
absence or inability to act, the person whom the chairman of the meeting shall
appoint secretary of the meeting) shall act as secretary of the meeting and
keep the minutes thereof.
2.7 ORDER OF BUSINESS.
The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting.
2.8 VOTING.
(a) Unless otherwise provided in the Certificate and subject to
Delaware Law, each stockholder shall be entitled to one vote in person or by
proxy for each outstanding share of capital stock of the Corporation held by
such stockholder. Any shares of capital stock of the Corporation held by the
Corporation shall have no voting rights. Persons holding stock in a fiduciary
capacity shall be entitled to vote the shares so held. A person whose stock is
pledged shall be entitled to vote, unless in the transfer by the pledgor on
the books of the Corporation, such person has expressly empowered the pledgee
to vote thereon, in which case only the pledgee or such pledgee's proxy may
represent such stock and vote thereon. If shares or other securities having
voting power stand 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 of the
Corporation shall be given written notice to the contrary and 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 person's 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, such shares shall be voted in the manner provided by
Delaware Law.
If the instrument so filed shows that any such tenancy is held in unequal
interests, a majority or even-split for the purposes of this Section 2.8 shall
be a majority or even-split in interest. The Corporation shall not vote
directly or indirectly any share of its own capital stock.
(b) Unless otherwise provided in Delaware Law, the Certificate or
these By-laws, in all matters other than the election of directors, the
affirmative vote of a majority of the shares of capital stock of the
Corporation present, in person or by proxy, at a meeting of stockholders and
entitled to vote on the subject matter shall be the act of the stockholders.
Directors shall be elected by a plurality of the votes of the shares present
in person or by proxy at the meeting and entitled to vote on the election of
directors.
(c) Each stockholder entitled to vote at a meeting of stockholders
may authorize another person or persons to act for such stockholder by proxy,
but no such proxy shall be voted or acted upon after three years from its
date, unless the proxy provides for a longer period.
(d) Without limiting the manner in which a stockholder may authorize
another person or persons to act for such stockholder as proxy pursuant to
subsection (c) of this Section 2.8, the following shall constitute a valid
means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another
person or persons to act for such stockholder as proxy.
Execution may be accomplished by the stockholder or such
stockholder's authorized officer, director, employee or
agent signing such writing or causing such person's
signature to be affixed to such writing by any reasonable
means including, but not limited to, by facsimile
signature.
(ii) A stockholder may authorize another person or persons to
act for such stockholder as proxy by transmitting or
authorizing the transmission of a telegram, cablegram, or
other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation
firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the
proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic
transmission must either set forth or be submitted with
information from which it can be determined that the
telegram, cablegram or other electronic transmission was
authorized by the stockholder. If it is determined that
such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no
inspectors, such other persons making that determination
shall specify the information upon which they relied.
(e) Any copy, facsimile telecommunication or other reliable
reproduction of the writing or transmission created pursuant to subsection (d)
of this Section 2.8 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.
2.9 INSPECTORS OF ELECTIONS.
Preceding any meeting of the stockholders, the Board by resolution or
the Chairman of the Board or the Chief Executive Officer shall appoint one or
more persons to act as inspectors at the meeting and make a written report
thereof. The Corporation may designate one or more alternate inspectors to
replace any inspector who fails to act. In the event no inspector or alternate
is able to act at a meeting of stockholders, the person presiding at the
meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of the duties of an inspector,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of such inspector's ability. The
inspectors shall:
(a) ascertain the number of shares outstanding and the voting power
of each;
(b) determine the shares represented at a meeting and the validity of
proxies and ballots;
(c) count all votes and ballots;
(d) determine and retain for a reasonable period a record of the
disposition of any challenges made to any determination by the inspectors; and
(e) certify their determination of the number of shares represented
at the meeting, and his or her count of all votes and ballots.
The inspector(s) may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of inspector. In
determining the shares represented and the validity and counting of proxies
and ballots, the inspector shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information provided in
accordance with Section 2.8 of these By-laws, ballots and the regular books
and records of the Corporation. The inspector may consider other reliable
information for the limited purpose of reconciling proxies and ballots
submitted by or on behalf of banks, brokers or their nominees or a similar
person which represent more votes than the holder of a proxy is authorized by
the record owner to cast or more votes than the stockholder holds of record.
If the inspector considers other reliable information for the limited purpose
permitted by this paragraph, the inspector, at the time of his or her
certification pursuant to subsection (e) of this Section 2.9, shall specify
the precise information considered, the person or persons from whom the
information was obtained, when this information was obtained, the means by
which the information was obtained, and the basis for the inspector's belief
that such information is accurate and reliable.
2.10 OPENING AND CLOSING OF POLLS.
The date and time of the opening and closing of the polls for each
matter to be voted upon at a stockholder meeting shall be announced at the
meeting. The inspector of the election shall be prohibited from accepting any
ballots, proxies or votes or any revocations thereof or changes thereto after
the closing of the polls, unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
2.11 LIST OF STOCKHOLDERS.
It shall be the duty of the Secretary or other officer of the
Corporation who shall have charge of its stock ledger to prepare and make, at
least 10 days before every meeting of the stockholders, a complete list of the
stockholders entitled to vote thereat, arranged in alphabetical order, and
showing the address of each stockholder 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 any such meeting, during ordinary
business hours, for a period of at least 10 days prior to such meeting, either
at a place within the city where such meeting is to be held, which place shall
be specified in the notice of the meeting or, if not so specified, at the
place where the meeting is to be held. Such 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.
2.12 ACTION BY CONSENT.
Any action required or permitted to be taken at any annual or special
meeting of stockholders may be taken only upon the vote of stockholders at an
annual or special meeting duly noticed and called in accordance with Delaware
Law and may not be taken by written consent of stockholders without a meeting.
2.13 NOMINATION OF DIRECTORS.
Only persons who are nominated in accordance with the procedures set
forth in these By-laws shall be eligible to serve as directors. Nominations of
persons for election to the Board may be made at a meeting of stockholders (a)
by or at the direction of the Board or (b) by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 2.13, who shall be entitled to vote for the
election of directors at the meeting and who complies with the notice
procedures set forth in this Section 2.13. Such nominations, other than those
made by or at the direction of the Board, must be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 90 days nor more
than 120 days prior to the first anniversary of the previous year's annual
meeting. 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 "1934 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); and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the Corporation's books, of such stockholder, (ii)
the class and number of shares of the Corporation which are beneficially owned
by such stockholder and (iii) a description of all arrangements or
understandings between such stockholder and each proposed nominee and any
other person or persons (including their names) pursuant to which the
nominations are to be made by such stockholder. At the request of the Board,
any person nominated by the Board for election as a director shall furnish to
the secretary of the Corporation that information required to be set forth in
a stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible to serve as a director of the Corporation unless nominated
in accordance with the procedures set forth in this By-law. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the procedures prescribed by
the By-laws, and if he should so determine, he shall so declare to the meeting
and the defective nomination shall be disregarded. Notwithstanding the
foregoing provisions of this Section 2.13, a stockholder shall also comply
with all applicable requirements of the 1934 Act, and the rules and
regulations thereunder with respect to the matters set forth in this
Section 2.13.
2.14 NOTICE OF BUSINESS.
At any meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (a) by or at the
direction of the Board or (b) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of the notice provided for in this
Section 2.14, who shall be entitled to vote at such meeting and who complies
with the notice procedures set forth in this Section 2.14. For business to be
properly brought before a stockholder meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary
of the Corporation. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the Corporation
not less than 90 days nor more than 120 days prior to the first anniversary of
the previous year's annual meeting. A stockholder's notice to the Secretary
shall set forth as to each matter the stockholder proposes to bring before the
meeting (a) a brief description of the business desired to be brought before
the meeting and the reasons for conducting such business at the meeting, (b)
the name and address, as they appear on the Corporation's books, of the
stockholder proposing such business, (c) the class and number of shares of the
Corporation which are beneficially owned by the stockholder and (d) any
material interest of the stockholder in such business and a description of all
arrangements or understandings between such stockholder and any other person
or persons (including their names) in connection with the proposal of such
business by such stockholder. Notwithstanding anything in the By-laws to the
contrary, no business shall be conducted at a stockholder meeting except in
accordance with the procedures set forth in this Section 2.14. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that business was not properly brought before the meeting and in accordance
with the provisions of the By-laws, and if he should so determine, he shall so
declare to the meeting any such business not properly brought before the
meeting shall not be transacted. Notwithstanding the foregoing provisions of
this Section 2.14, a stockholder shall also comply with all applicable
requirements of the 1934 Act, and the rules and regulations thereunder with
respect to the matters set forth in this Section 2.14.
ARTICLE III
BOARD OF DIRECTORS
3.1 GENERAL POWERS.
Except as otherwise provided by Delaware Law or the Certificate, the
business, property and affairs of the Corporation shall be managed by or under
the direction of the Board, which 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 directed or required to be exercised or done by the stockholders.
3.2 NUMBER, COMPOSITION, NOMINEES, CLASSES AND TERM OF OFFICE.
(a) Number. The Board shall consist of not less than three nor
more than fifteen directors, with the exact number of directors to be
determined from time to time solely by resolution adopted by the affirmative
vote of a majority of the entire Board.
(b) Composition. As long as Proha or any Affiliate of Proha or
any Proha Successor beneficially owns shares of Common Stock that constitutes
at least (i) fifty percent (50%) of the aggregate issued and outstanding
Common Stock, the Corporation shall use its commercially reasonable efforts to
ensure that a total of five (5) Proha Nominees are members of the Board, (ii)
thirty-three and one third percent (33.33%) but less than fifty percent (50%)
of the aggregate issued and outstanding Common Stock, the Corporation shall
use its commercially reasonable efforts to ensure that a total of four (4)
Proha Nominees are members of the Board, (iii) ten percent (10%) but less than
thirty-three and one third percent (33.33%) of the aggregate issued and
outstanding Common Stock, the Corporation shall use its commercially
reasonable efforts to ensure that a total of three (3) Proha Nominees are
members of the Board. The Corporation and the Board may not take any action,
without due cause, to remove the Proha Nominees serving as directors of the
Corporation.
(c) Nominees. The Corporation shall ensure that the Board (and
the Corporation's nominating committee, if any) shall recommend the inclusion
of the Proha Nominees in the slate of nominees recommended to stockholders for
election as directors at each annual meeting of stockholders of the
Corporation.
(d) Classes and Terms of Office. The directors shall be divided
into three classes, designated Class I, Class II and Class III. Each class
shall consist, as nearly as may be possible, of one-third of the total number
of directors constituting the entire Board. Except as otherwise provided in
the Certificate, each director shall serve for a term ending on the date of
the third annual meeting of stockholders next following the annual meeting at
which such director was elected. Notwithstanding the foregoing, each director
shall hold office until such director's successor shall have been duly elected
and qualified or until such director's earlier death, resignation or removal.
Directors need not be stockholders.
(e) Non-Executive Chairman of the Board; Vice Chairman. The
Board may appoint, from time to time by majority vote, a non-executive
Chairman of the Board. Such individual shall serve for the term set by the
Board at the time of such appointment and so long as no Chairman of the Board
as contemplated in Article IV hereof has been appointed by the Board. Such
individual shall preside at meetings of the Board and of the stockholders at
which he is present and in connection therewith shall have the duties and
authority set forth in Article II (except Section 2.3) and Section 3.7 hereof.
Such individual shall not perform the other duties nor have the other powers
and authority set forth in these By-laws as the duties, powers and authority
of the officer Chairman of the Board described in Article IV. The Board may
further appoint one or more Vice Chairmen of the Board to assist the Chairman
in some or all of his duties.
3.3 RESIGNATION.
Any director may resign at any time by giving written notice to the
Board or the Secretary of the Corporation. Such resignation shall take effect
at the time specified therein or, if the time be not specified, upon receipt
thereof; and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
3.4 VACANCIES.
Unless otherwise provided in the Certificate, vacancies on the Board
resulting from incapacity, death, resignation, removal or otherwise and newly
created directorships resulting from any increase in the number of directors
may be filled solely by a majority of the directors then in office (although
less than a quorum) or by the sole remaining director; provided, however, that
if at any time, a vacancy is created on the Board by reason of the incapacity,
death, removal or resignation of any Proha Nominee, then Proha shall appoint
an individual to fill such vacancy until the next meeting of stockholders.
Each director so elected or appointed, as the case may be, shall hold office
for a term that shall coincide with the term of the Class to which such
director shall have been elected or appointed as the case may be. If there are
no directors in office, then an election of directors may be held in
accordance with Delaware Law. Unless otherwise provided in the Certificate,
when one or more directors shall resign from the Board, effective at a future
date, a majority of the directors then in office, including those who have so
resigned, shall have the power to fill such vacancy or vacancies, the vote
thereon to take effect when such resignation or resignations shall become
effective, and each director so chosen shall hold office as provided in the
filling of the other vacancies; provided, however, that if at any time, a
Proha nominee shall resign from the Board, effective at a future date, then
Proha shall appoint an individual to fill such vacancy until the next meeting
of stockholders.
3.5 REMOVAL.
No director may be removed from office by the stockholders except for
cause with the affirmative vote of the holders of not less than 66 2/3% of the
total voting power of all outstanding securities of the Corporation then
entitled to vote generally in the election of directors, voting together as a
single class.
3.6 COMPENSATION.
Unless otherwise restricted by the Certificate or these By-laws, the
Board shall have authority to fix the compensation of directors, including
fees and reimbursement of expenses. The Proha Nominees serving as directors
shall be entitled to compensation and indemnification rights consistent with
those of other directors of the Corporation, including, without limitation,
any rights to participate in stock option or similar plans.
3.7 MEETINGS AND CONDUCT THEREOF
(a) Time and Place of Meetings. The Board may hold its meetings at
such place or places within or outside the State of Delaware, and at such
times, as may from time to time be determined by the Board (or the Chairman of
the Board in the absence of a determination by the Board). The Corporation
shall provide the Proha Nominees serving as directors notice of each meeting
of the Board at the same time and in the same manner as other members of the
Board.
(b) Annual Meetings. As soon as practicable after each annual meeting
of stockholders, the Board shall meet for the purpose of organization, the
election of officers and the transaction of other business, on the same day
and at the same place where such annual meeting shall be held unless it shall
have transacted all such business by written consent pursuant to Section 3.8
of this Article III. Notice of such meeting need not be given. In the event
such annual meeting is not so held, the annual meeting of the Board may be
held at such place either within or without the State of Delaware, on such
date and at such time as shall be specified in a notice thereof given as
hereinafter provided in Section 3.7(d) of this Article III or in a waiver of
notice thereof signed by any director who chooses to waive the requirement of
notice.
(c) Regular Meetings. After the place and time of regular meetings of
the Board shall have been determined and notice thereof shall have been once
given to each member of the Board, regular meetings may be held without
further notice being given.
(d) Special Meetings. Special meetings of the Board may be called by
the Chairman of the Board and shall be called by the Chairman of the Board or
the Secretary on the written request of three directors. Notice of special
meetings of the Board shall be given to each director at least two days before
the date of the meeting in such manner as is determined by the Board or may be
given on such shorter notice as the person or persons calling such meeting may
deem necessary or appropriate under the circumstances.
(e) Waiver of Notice. A written waiver of any notice signed by the
person entitled thereto, whether before or after the time stated therein,
shall be deemed equivalent to notice. Attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except when the person
attends the meeting for the express purpose of objecting, at the beginning of
the meeting, to the transaction of any business because the meeting is not
lawfully called or convened. Except as otherwise provided in these By-laws,
neither the business to be transacted at, nor the purpose of, any meeting of
directors need be specified in any such notice or waiver of notice.
(f) Quorum and Manner of Acting. Unless the Certificate or these
By-laws require a greater number, a majority of the total number of directors
then in office shall be present in person at any meeting of the Board in order
to constitute a quorum for the transaction of business at such meeting, and
the affirmative vote of a majority of those directors present at any such
meeting at which a quorum is present shall be necessary for the passage of any
resolution or act of the Board. When a meeting is adjourned to another time or
place (whether or not a quorum is present), notice need not be given of the
adjourned meeting if the time and place thereof are announced at the meeting
at which the adjournment is taken. At the adjourned meeting, the Board may
transact any business which might have been transacted at the original
meeting. If a quorum shall not be present at any meeting of the Board the
directors present thereat may adjourn the meeting, from time to time, without
other than announcement at the meeting, until a quorum shall be present.
(g) Organization. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside thereat, in the following
order of precedence:
(i) the Chairman of the Board, if any;
(ii) the President (if a director); or
(iii) any director designated by a majority of the directors present.
The Secretary or, in the case of his absence, an Assistant Secretary, if an
Assistant Secretary has been appointed and is present, or any person whom the
chairman of the meeting shall appoint shall act as secretary of such meeting
and keep the minutes thereof.
3.8 DIRECTORS' CONSENT IN LIEU OF MEETING.
Unless otherwise restricted by the Certificate or these By-laws, any
action required or permitted to be taken at any meeting of the Board 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, and the writing
or writings are filed with the minutes of proceedings of the Board or
committee.
3.9 ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT.
Unless otherwise restricted by the Certificate or these By-laws,
members of the Board, or any committee designated by the Board, may
participate in a meeting of the Board or such committee, as the case may be,
by means of conference telephone or similar communications equipment by which
all persons participating in the meeting can hear each other, and
participation in a meeting by such means shall constitute presence in person
at such meeting.
3.10 COMMITTEES.
The Board may designate one or more committees, each committee to
consist of one or more of the 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. The
Board shall appoint Proha Nominees to serve on each committee of the Board
(other than the Opus Directors Committee) in at least the same proportions
that the number of Proha Nominees serving on the Board bears to the total
number of directors then comprising the Board; provided, however, that the
Corporation and Proha shall cooperate in order to comply with any NASD rules
or regulations (or the rules and regulations of any national exchange on which
the Common Stock is traded) relating to director independence on committees.
In the absence or disqualification of a member of a committee, the member or
members present at any meeting and not disqualified from voting, whether or
not such member or members constitute a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of any such
absent or disqualified member. Any such committee, to the extent provided in
the resolution of the Board, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to
all papers which may require it; but no such committee shall have the power or
authority in reference to the following matter: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by
Delaware Law to be submitted to the stockholders for approval or (ii)
adopting, amending or repealing any bylaw of the Corporation. Each committee
shall keep regular minutes of its meetings and report the same to the Board
when required.
3.11 PREFERRED DIRECTORS.
Notwithstanding anything else contained herein, whenever the holders
of one or more classes or series of Preferred Stock shall have the right,
voting separately as a class or series, to elect directors, the election, term
of office, filing of vacancies, removal and other features of such
directorships shall be governed by the terms of the resolutions applicable
thereto adopted by the Board pursuant to the Certificate, and such directors
so elected shall not be subject to the provisions of Sections 3.2, 3.4 and 3.5
of this Article III unless otherwise provided therein.
3.12 INTERESTED DIRECTORS.
No contract or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or
solely because the director or officer is present at or participates in the
meeting of the Board or committee thereof which authorizes the contract or
transaction, or solely because any such director's or officer's votes are
counted for such purpose if (i) the material facts as to the director's or
officer's relationship or interest and as to the contract or transaction are
disclosed or are known to the Board 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 be less than a quorum; or (ii) the material facts
as to the director's or officer's relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (iii) the contract or
transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified, by the Board, a committee thereof or the stockholders.
Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board or of a committee which authorizes the
contract or transaction.
3.13 CERTAIN DEFINITIONS.
The following definitions shall apply with respect to this Article
III (Board of Directors):
(a) "Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person and, shall
include (a) in the case of a Person who is an individual, (i) members of such
specified Person's immediate family (as defined in Instruction 2 of Item
404(a) of Regulation S-K under the Securities Act) and (ii) trusts, the
trustee and all beneficiaries of which are such specified Person or members of
such Person's immediate family as determined in accordance with the foregoing
clause (i), and (b) any Person that directly or indirectly owns more than 5%
of any class of capital stock or other interest of such specified Person. For
the purposes of this definition, "control," when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "affiliated," "controlling" and
"controlled" have meanings correlative to the foregoing.
(b) "NASD" shall mean the National Association of Securities Dealers,
Inc.
(c) "Opus Directors Committee" shall mean a committee of the
Corporation's Board with the powers set forth in Section 6.3 of the Share
Exchange Agreement.
(d) "Person" shall mean any individual, partnership, corporation,
limited liability company, limited partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, government or agency
or political subdivision thereof, or other entity.
(e) "Proha" shall mean Proha Plc, a Finnish corporation.
(f) "Proha Nominees" shall mean the nominees of Proha to serve as
directors of the Corporation.
(g) "Proha Successor" shall mean any successor entity of Proha in
connection with any merger, recapitalization, reorganization or de-merger in
which Proha is the surviving entity and which does not result in any
reclassification of the outstanding shares of Proha common stock into shares
of other stock or other securities or property.
(h) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
(i) "Share Exchange Agreement" shall mean the Share Exchange
Agreement by and between the Corporation and Proha, dated as of April 11,
2001, as amended by the First Amendment, dated as of July 10, 2001.
ARTICLE IV
OFFICERS
4.1 PRINCIPAL OFFICERS.
The principal officers of the Corporation shall be a Chairman of the
Board, if one is appointed by the Board (and any references to the Chairman of
the Board shall not apply if a Chairman has not been appointed), a Chief
Executive Officer, a President, a Treasurer, and a Secretary who shall have
the duty, among other things, to record the proceedings of the meetings of
stockholders and directors in a book kept for that purpose. The Corporation
may also have such other principal officers, including one or more
controllers, as the Board may in its discretion appoint. One person may hold
the offices and perform the duties of any two or more of said offices, except
that no one person shall hold the offices and perform the duties of Chief
Executive Officer or President and Secretary. The officers of the Corporation
need not be stockholders of the Corporation, nor, except in the case of the
Chairman of the Board, need such officers be directors of the Corporation.
4.2 AUTHORITY AND DUTIES.
The officers of the Corporation shall have such powers and perform
such incident to each of their respective offices and such other duties as may
be provided in these By-laws or as may from time to time be conferred upon or
assigned to them by the Board
4.3 SUBORDINATE OFFICERS.
In addition to the principal officers enumerated in Section 4.1 of
this Article IV, the Corporation may have such other subordinate officers,
agents and employees as the Board may deem necessary, including one or more
Vice Presidents, Assistant Secretaries, one or more Assistant Treasurers and
one or more Assistant Controllers, each of whom shall hold office for such
period, have such authority and perform such duties as the Board, the Chairman
of the Board or the President may from time to time determine. The Board may
delegate to the Chief Executive Officer and the President the power to appoint
and define the authority and duties of, or remove, any such officers, agents
or employees, as well as the authority to remove the Treasurer and the
Secretary.
4.4 TERM OF OFFICE, RESIGNATION, REMOVAL AND REMUNERATION.
The principal officers of the Corporation shall be elected annually
by the Board at the annual meeting thereof, or at such other times as the
Board shall deem appropriate. Each such officer shall hold office until such
officer's successor has been elected or appointed and qualified or until his
earlier death or resignation or removal. The remuneration of all officers of
the Corporation shall be fixed from time to time by the Board unless otherwise
delegated by the Board to a particular committee of the Board. Any vacancy in
any office shall be filled in such manner as the Board shall determine. The
Board may require any officer to give security for the faithful performance of
his duties.
Any officer may resign at any time by giving written notice to the
Board, the Chairman of the Board, the President or the Secretary. Such
resignation shall take effect at the time specified therein or, if the time be
not specified, at the time of receipt of notice thereof; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective.
Except as otherwise permitted by Section 4.3 of this Article IV, any
officer may be removed, with or without cause, at any time, by resolution
adopted by the Board.
4.5 THE CHAIRMAN OF THE BOARD.
The Chairman of the Board shall give counsel and advice to the Board
and the officers of the Corporation on all subjects concerning the welfare of
the Corporation and the conduct of its business and shall perform such other
duties as the Board may from time to time determine. The Chairman of the Board
shall preside at meetings of the Board and of the stockholders at which he is
present.
4.6 THE PRESIDENT AND THE CHIEF EXECUTIVE OFFICER.
Unless otherwise determined by the Board, the President shall be the
chief executive officer of the Corporation. The President (or in the event the
Board separately appoints a Chief Executive Officer, the person appointed as
such Chief Executive Officer) shall have supervision, direction and control of
the business and affairs of the Corporation subject to the control of the
Board and shall see that all orders and resolutions of the Board are carried
into effect. The President (or in the event the Board separately appoints a
Chief Executive Officer, the person appointed as such Chief Executive Officer)
shall from time to time make such reports of the affairs of the Corporation as
the Board may require and shall perform such other duties as the Board may
from time to time determine.
If the Board has separately appointed a Chief Executive Officer and a
President, in the absence or disability of the Chief Executive Officer, the
President, unless otherwise determined by the Board, shall have the authority,
and shall perform the duties, of the Chief Executive Officer.
4.7 THE SECRETARY.
The Secretary shall, to the extent practicable, attend all meetings
of the Board and all meetings of the stockholders and shall record all votes
and the minutes of all proceedings in a book to be kept for that purpose. The
Secretary may give, or cause to be given, notice of all meetings of the
stockholders and of the Board, and all other notices required by law or by
these By-laws. The Secretary shall keep in safe custody the seal of the
Corporation and affix the same to any duly authorized instrument requiring it
and, when so affixed, it shall be attested by his signature or by the
signature of the Treasurer or, if appointed, an Assistant Secretary or an
Assistant Treasurer. The Secretary shall keep in safe custody the certificate
books and stockholder records and such other books and records as the Board
may direct, and shall perform all other duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board, the Chairman of the Board or the Chief Executive Officer.
4.8 THE TREASURER.
The Treasurer shall have the care and custody of the corporate funds
and other valuable effects, including securities, shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation
and shall deposit all moneys and other valuable effects in the name and to the
credit of the Corporation in such depositories as may be designated by the
Board. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board or the Chief Executive Officer, taking proper vouchers
for such disbursements, shall render to the Chairman, the Chief Executive
Officer and directors, at the regular meetings of the Board or whenever they
may request it, an account of all his transactions as Treasurer and of the
financial condition of the Corporation and shall perform all other duties
incident to the office of Treasurer and such other duties as from time to time
may be assigned to him by the Board, the Chairman of the Board or the Chief
Executive Officer.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
5.1 EXECUTION OF DOCUMENTS.
The Board shall designate, by either specific or general resolution,
the officers, employees and agents of the Corporation who shall have the power
to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and
in the name of the Corporation, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation.
5.2 DEPOSITS.
All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation or otherwise as
the Board or Treasurer, or any other officer of the Corporation to whom power
in this respect shall have been given by the Board, shall select.
5.3 PROXIES WITH RESPECT TO STOCK OR OTHER SECURITIES OF OTHER CORPORATIONS.
The Chief Executive Officer, the President or any other officer of
the Corporation designated by the Board shall have authority from time to time
to appoint an agent or agents of the Corporation to exercise in the name and
on behalf of the Corporation the powers and rights which the Corporation may
have as the holder of stock or other securities in any other corporation, and
to vote or consent with respect to such stock or securities. Such designated
officers may instruct the person or persons so appointed as to the manner of
exercising such powers and rights, and such designated officers may execute or
cause to be executed in the name and on behalf of the Corporation and under
its corporate seal or otherwise, such written proxies, powers of attorney or
other instruments as they may deem necessary or proper in order that the
Corporation may exercise its powers and rights.
ARTICLE VI
GENERAL PROVISIONS
6.1 FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD; BENEFICIAL OWNERS.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted by the Board, and which record date shall be not more than 60 nor less
than 10 days before the date of such meeting. If no record date is fixed by
the Board, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which
the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect
of any change, conversion or exchange of stock, or for the purpose of any
other lawful action, the Board may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is
adopted, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day
on which the Board adopts the resolution relating thereto.
(c) The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by law.
6.2 DIVIDENDS.
Subject to limitations contained in Delaware Law and the Certificate,
the Board may declare and pay dividends upon the shares of capital stock of
the Corporation, which dividends may be paid either in cash, in property or in
shares of the capital stock of the Corporation.
6.3 FISCAL YEAR.
The fiscal year of the Corporation shall commence on January 1 and
end on December 31 of each year.
6.4 CORPORATE SEAL.
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed, affixed or otherwise reproduced.
6.5 AMENDMENTS.
These By-laws or any of them, may be altered, amended or repealed, or
new By-laws may be made, by the stockholders entitled to vote thereon at any
annual or special meeting thereof or by the Board.
6.6 EFFECTIVE DATE.
These By-laws shall become effective as of January 25, 2002.
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