Exhibit 3.2
BY-LAWS
OF
OMNICOM GROUP INC.
A NEW YORK CORPORATION
(AS AMENDED AND RESTATED MAY 20, 2003)
ARTICLE I
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings. All meetings of the shareholders of the
Corporation will be held at such places, within or outside of the State of New
York, as may be fixed from time to time by the Board of Directors.
Section 2. Annual Meeting. Commencing in the year 1988, the annual meeting
of shareholders will be held on such date and at such time as may be fixed by
the Board of Directors. At each annual meeting of shareholders the shareholders
will elect directors and transact such other business as may properly be brought
before the meeting. No shareholder shall have any right to bring a matter before
the shareholders for a vote at the annual meeting of shareholders, unless such
shareholder shall have given the Secretary of the Corporation written notice of
his intention to do so not less than 60 days prior to the date set for the
annual meeting. Such notice shall include the name and address of the
shareholder proposing to bring such matter before such meeting, identify the
matter proposed to be brought before the meeting and disclose the shareholder's
interest in the proposed matter. No shareholder shall have any right to propose
or nominate a nominee for election to the Board of Directors of the Corporation,
unless such shareholder shall have given the Secretary of the Corporation
written notice of his intention to do so not less than 60 days before the date
set for the annual meeting. Such notice shall include as
to each nominee and such shareholder (i) the information as to such nominee and
shareholder that would be required to be included in a proxy statement under the
proxy rules of the Securities and Exchange Commission if such shareholder were
to solicit proxies from all shareholders of the Corporation for the election of
such nominee as a director and such solicitation were one to which Rules 14a-3
to 14a-12 under the Securities Exchange Act of 1934, as amended, apply and (ii)
the information as to such nominee and shareholder specified in Schedule 14B
under the proxy rules of the Securities and Exchange Commission. If, at any such
meeting, a shareholder gives notice of intention to propose that action be taken
which would, if taken, entitle shareholders fulfilling the requirements of
Section 623 of the Business Corporation Law of New York (relating to the
procedure to enforce a shareholder's right to receive payment for his shares) to
receive payment for their shares, such notice shall include a statement to that
effect.
Section 3. Notice of Annual Meeting. Written notice of each annual meeting
of shareholders stating the place, date and hour of the melting, will be given
in the manner set forth in Article IV of these By-Laws not less than ten nor
more than fifty days before the date of the meeting to each shareholder entitled
to vote at the meeting.
Section 4. Special Meetings. Special meetings of shareholders may be
called at any time for any purpose or purposes, by the Board of Directors, or by
the President, and shall be called by the President or the Secretary upon the
written request of a majority of the Board of Directors. A request shall state
the purpose or purposes of the proposed meeting.
Section 5. Notice of Special Meeting. Notice of each special meeting of
shareholders will be given in the manner set forth in Article IV of these
By-Laws not less than ten nor more than fifty days before the date of the
meeting to each shareholder entitled to vote at
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the meeting. Each notice will state the place, date and hour of the meeting, and
the purpose or purposes for which the meeting is called and indicate by whom it
is being called.
Section 6. Quorum. Except as otherwise required by law or the Certificate
of Incorporation, the presence in person or by proxy of the holders of record of
a majority of the shares entitled to vote at a meeting of shareholders will be
necessary, and will constitute a quorum, for the transaction of business at that
meeting. If a quorum is not present or represented by proxy at any meeting of
stockholders, the holders of a majority of the shares entitled to vote at the
meeting who are present in person or represented by proxy may adjourn the
meeting from time to time until a quorum is present. An adjourned meeting may be
held later without notice other than announcement at the meeting, except that if
after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given in the manner set forth in
Article IV to each stockholder entitled to vote at the adjourned meeting. At any
adjourned meeting at which a quorum is present any business may be transacted
which might have been transacted at the meeting as originally called.
Section 7. Qualification of Voters. The only persons entitled to notice of
or to vote at any meeting of shareholders will be the persons shown as
shareholders of the Corporation on the stock records of the Corporation on the
record date fixed by the Board of Directors, or, in the absence of a record
date, at the close of business on the date the notice of the meeting is given.
Section 8. Voting. At any meeting of shareholders each shareholder having
the right to vote shall be entitled to vote in person or by proxy. Except as
otherwise provided by law or the Certificate of Incorporation, each shareholder
will be entitled to one vote for each share of stock entitled to vote standing
in his name on the books of the Corporation. All
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elections of directors will be determined by plurality votes. Except as
otherwise provided by law or in the Certificate of Incorporation or these
By-Laws, any other matter will be determined by the vote of the holders of a
majority of the shares voting on it.
Section 9. Action Without a Meeting. Except as otherwise provided by the
Certificate of Incorporation, whenever the vote of shareholders is required or
permitted in connection with any corporate action, that action may be taken
without a meeting on written consent setting forth the action which is taken,
signed by the holders of all the outstanding shares entitled to vote on it.
ARTICLE II
BOARD Of DIRECTORS
Section 1. Function. The Board of Directors will manage the business of
the Corporation, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws.
Section 2. Number and Term of Office. The number of directors constituting
the entire Board of Directors will be such number, not less than three nor more
than twenty, as is determined by resolution of the Board of Directors from time
to time, unless all the shares are owned beneficially and of record by less than
three shareholders, in which event the number of directors fixed by resolution
of the Board may be less than three but not less than the number of
shareholders. As used in these By-Laws, "entire Board of Directors" means the
total number of directors which the Corporation would have if there were no
vacancies. Except as provided in Section 4 of this Article, the directors will
be elected at the annual meetings of shareholders. The directors will be divided
into classes and elected for terms as provided in the Certificate of
Incorporation.
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Section 3. Removal of Directors. Except as otherwise provided by law no
director shall be removed prior to the expiration date of his term of office, as
such date is defined in the Certificate of Incorporation of the Corporation,
except for cause and by the affirmative vote of a majority of the entire Board
of Directors or of the holders of the percentage of outstanding stock of the
Corporation entitled to vote as is set forth in the Certificate of Incorporation
of the Corporation. Except as may otherwise be provided by law, cause for
removal shall exist only if the director whose removal is proposed has been
convicted of a felony by a court of competent jurisdiction to be liable for acts
committed in bad faith or the result of active and deliberate dishonesty and
such acts were material to the cause of action so adjudicated, or acts in which
he personally gained a financial profit or other advantage to which he was not
legally entitled, or has been adjudicated mentally incompetent by a court of
competent jurisdiction.
Section 4. Vacancies. Newly created directorships resulting from an
increase in the number of directors and vacancies occurring in the Board may be
filled by the vote of a majority of the directors then in office, even if less
than a quorum exists. Each director so elected will hold office until the next
annual meeting of shareholders. Newly created directorships resulting from an
increase in the number of directors and vacancies occurring in the Board also
may be filled by the shareholders of the Corporation at the next annual meeting
or any special meeting called for the purpose, and each director so elected will
hold office for the term provided in the Certificate of Incorporation.
Section 5. Resignation. Any director of the Corporation may resign at any
time by giving written notice of his or her resignation to the Board of
Directors, the President or the Secretary of the Corporation. A resignation will
take effect at the time specified in the notice
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or, if no time is specified, at the time the notice is given, and the acceptance
of a resignation will not be necessary to make it effective.
Section 6. Executive Committee and Other Committees. By the affirmative
vote of a majority of the entire Board, the Board of Directors may designate
from among its members an Executive Committee and other committees, each
consisting of at least three members. The Executive Committee will have all the
authority of the Board of Directors except as otherwise provided by Section 712
of the New York Business Corporation Law or other applicable statutes. Any other
committees will have such authority as the Board of Directors may provide. The
Board of Directors may designate one or more directors as alternate members of
the Executive Committee or any other committee to replace absent members.
Members of all committees will serve at the pleasure of the Board of Directors.
Section 7. Action by Unanimous Written Consent. Any action required or
permitted to be taken by the Board of Directors or any committee of the Board of
Directors may be taken without a meeting if all the members of the Board or the
committee consent in writing to the adoption of a resolution authorizing the
action. The resolution and the written consents by the members of the Board or
committee shall be filed with the minutes of the proceedings of the Board or
committee.
Section 8. Participation by Telephone. Any director may participate in a
meeting of the Board of Directors or a committee by conference telephone or
similar communications equipment which allows all persons participating in the
meeting to hear each other at the same time. Participation by that means will
constitute presence in person at the meeting.
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ARTICLE III
MEETINGS OF DIRECTORS
Section 1. First Meeting. The first meeting of each newly elected Board of
Directors will be held immediately following each annual meeting of
shareholders. If the meeting is held at the place of the meeting of
shareholders, no notice of the meeting need be given to the newly elected
directors. If the first meeting is not so held, it shall be held at a time and
place specified in a notice given in the manner provided for notice of special
meetings of the Board of Directors.
Section 2. Regular Meetings. Regular meetings of the Board of Directors
may be held upon such notice, or without notice, at such places and at such
times as may from time to time be designated by the Board of Directors. If any
day fixed for a regular meeting is a legal holiday at the place where the
meeting is to be held, the meeting will be held at that place at the same hour
on the next day which is not a legal holiday.
Section 3. Special Meetings; Notice. Special meetings of the Board of
Directors will be held whenever called by the President, or by the Secretary at
the written request of any two directors. Notice of each special meeting,
stating the time and place of the meeting, shall be given in the manner set
forth in Article IV of these By-Laws not less than forty-eight hours before the
time the meeting is to be held. A notice need not specify the purpose of any
meeting of the Board of Directors, unless otherwise provided by these By-Laws.
Section 4. Place of Meeting. The Board of Directors may hold its meetings
and keep the books and records of its proceedings at such place or places within
or outside of the State of New York as the Board may from time to time
determine.
Section 5. Quorum; Action by the Board. A majority of the entire board
will constitute a quorum for the transaction of business. Except as otherwise
provided by these
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By-Laws, or required by law, the affirmative vote of a majority of the directors
present at any meeting at which a quorum is present will be required for the
taking of an action by the Board of Directors. If a quorum is not present at a
meeting of the Board of Directors, a majority of the directors present at the
meeting may adjourn the meeting from time to time until a quorum is present,
without notice of the adjourned meeting other than announcement at the meeting.
ARTICLE IV
NOTICES
Section 1. Notice to a Shareholder. Any notice to a shareholder must be in
writing and given personally, by telephone or by mail. If mailed, a notice will
be deemed given when deposited in the United States mail, postage prepaid,
directed to the shareholder at the address which appears on the Corporation's
shareholder records or, if the shareholder filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, then addressed to him at that other address.
Section 2. Notice to a Director. Any notice to a director may be given
personally, by telephone or by mail, facsimile transmission, telegram, cable or
similar instrumentality. A notice will be deemed given when actually given in
person or by telephone or facsimile transmission, or three business days after
having been deposited in the United States mails or with the communications
company through which it is given, directed to the director at his business
address or at such other address as the director may have designated to the
Secretary of the Corporation as the address to which notices should be sent.
Section 3. Waiver of Notice. Any person may waive notice of any meeting by
signing a written waiver, whether before or after the meeting. In addition,
attendance by a shareholder at a meeting in person or by proxy or attendance by
a director at a meeting will be deemed a waiver of notice. A waiver of notice
need not specify the purposes of the meeting.
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ARTICLE V
OFFICERS
Section 1. Number. The officers of the Corporation will be a President, a
Chief Financial Officer, a Secretary, and a Comptroller, and the Board of
Directors may also elect a Chairman of the Board, a Vice Chairman of the Board,
one or more Vice Presidents (some of whom may be designated Executive Vice
Presidents or Senior Vice Presidents), a Treasurer, one or more Assistant
Secretaries, Assistant Comptrollers or Assistant Treasurers and such other
officers as it may from time to time deem advisable. Any two or more offices,
except the offices of President and Secretary, may be held by the same person.
No officers need be a director of the Corporation.
Section 2. Election and Term of Office. Each officer will be elected by
the Board of Directors and will hold office for such term, if any, as the Board
of Directors may determine. Any officer may be removed at any time, either with
or without cause, by the vote of a majority of the entire Board of Directors.
Section 3. Resignation. Any officer may resign at any time by giving
written notice to the Board of Directors or to the President. A resignation will
take effect at the time specified in the notice or, if no time is specified, at
the time the notice is given. Acceptance of a resignation will not be necessary
to make it effective.
Section 4. Powers and Duties. The President will be the Chief Executive
Officer of the Corporation. The other officers will have the powers,
responsibilities and duties which are customary with regard to the respective
offices which they hold, as well as any other powers, responsibilities and
duties, and subject to any limitations, which the Board of Directors may specify
from time to time.
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Section 5. Compensation. The Board of Directors will fix the compensation
of the chief executive officer, and subject to the discretion of the Board of
Directors, the chief executive officer shall have the right to fix the
compensation of all other officers and all employees of the Corporation.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 1. Certificates. The shares of stock of the Corporation will be
represented by certificates, in such form as the Board of Directors may from
time to time prescribe, except that the Board of Directors may provide that some
or all of any class or series of shares will be uncertificated shares. No
decision to have uncertificated shares will apply to shares represented by a
certificate until that certificate has been surrendered to the Corporation.
Section 2. Signatures on Certificates. Each certificate will be signed by
the President or a Vice President and the Secretary, the Comptroller or the
Treasurer or an Assistant Secretary, Assistant Comptroller or Assistant
Treasurer and will be sealed with the seal of the Corporation. If certificates
are countersigned by a transfer agent and registered by a registrar, the
signatures of the officers and the seal of the Corporation may be in facsimile.
If any officer who has signed or whose facsimile signature has been placed upon
a certificate ceases to hold that office before the certificate is issued, it
may nonetheless be issued by the Corporation with the same effect as if he held
the office at the date of issue.
Section 3. Lost or Destroyed Certificates. The Corporation may issue a new
certificate in place of any certificate issued by the Corporation which is
alleged to have been lost or destroyed. The Board of Directors may prescribe any
conditions precedent to the issuance of the new certificate which it deems
appropriate and may require a bond sufficient to indemnify
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the Corporation against any claim that may be made against it with regard to the
allegedly lost or destroyed certificate or because of the issuance of the new
certificate.
Section 4. Record Date. The Board of Directors may fix in advance a date
as the record date for determination of the shareholders entitled to notice of
or to vote at any meeting of shareholders, or to express consent to, or dissent
from, any proposal without a meeting, or to receive payment of any dividend or
allotment of any rights, or to take or be the subject of any other action. A
record date, will be not less than ten nor more than fifty days before the date
of the meeting to which it relates, nor more than fifty days before any other
action. A determination of shareholders entitled to notice of or to vote at any
meeting of shareholders which has been made as provided in this Section will
apply to any adjournment of that meeting, unless the Board of Directors fixes a
new record date for the adjourned meeting.
Section 5. Ownership. The Corporation will be entitled to treat a person
registered on its books as the owner of shares as the owner of those share for
all purposes, including the right to receive dividends, to vote, or to exercise
any other rights or privileges of an owner with regard to those shares.
Section 6. Rules and Regulations. The Board of Directors may make such
rules and regulations as it deems appropriate concerning the issue, transfer and
registration of certificates representing shares of stock of the Corporation.
ARTICLE VII
CORPORATE SEAL
The Board of Directors will provide a suitable seal containing the name of
the Corporation. The seal will be in the charge of the Secretary. A duplicate
seal may be kept and used.
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ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation will end at the close of business on
the thirty-first day of December in each year.
ARTICLE IX
INDEMNIFICATION
Section 1. Indemnification - Third Party and Derivative Actions.
(a) The Corporation shall indemnify any person made, or threatened
to be made, a party to an action or proceeding (including, without
limitation, one by or in the right of the Corporation to procure a
judgment in its favor), whether civil or criminal, including an action by
or in the right of any other Corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan
or other enterprise, which any director or officer of the Corporation
served in any capacity at the request of the Corporation, by reason of the
fact that he, his testator or intestate, was a director or officer of the
Corporation, or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise at the request of the
Corporation in any capacity, against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees actually and
necessarily incurred as a result of such action or proceeding, or any
appeal therein, provided that no indemnification may be made to or on
behalf of such person if (i) his or her acts were committed in bad faith
or were the result of his or her active and deliberate dishonesty and were
material to such action or proceedings or (ii) he or she personally gained
in fact a financial profit or other advantage to which he or she was not
legally entitled.
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(b) The termination of any such civil or criminal action or
proceeding by judgment, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not in itself create a presumption
that any such person did not act, in good faith, for a purpose which he or
she reasonably believed to be in, or, in the case of service for any other
corporation or any partnership, joint venture, trust, employee benefit
plan or other enterprise, not opposed to, the best interests of the
Corporation or that he or she had reasonable cause to believe that his or
her conduct was unlawful.
Section 2. Other Indemnification. The Corporation may, to the fullest
extent permitted by law, indemnify or advance the expenses of any other person
including agents and employees to whom the Corporation is permitted by law to
provide indemnification or advancement of expenses.
Section 3. Payment of Expenses in Advance. To the fullest extent permitted
by the New York Business Corporation Law, the Corporation will advance to any
person who may be entitled to indemnification under Sections 1 or 2 sums with
which to pay expenses incurred by that person in defending against the claims,
actions or proceedings for which such person may become entitled to
indemnification, upon receipt of an undertaking by or on behalf of such person
to repay the sums which are advanced if it is ultimately determined that such
person is not entitled to indemnification under Sections 1 or 2 to the extent
the sums which are advanced exceed the indemnification to which such person is
entitled.
Section 4. Enforcement; Defenses. The right to indemnification or
advancement of expenses granted by this Article shall be enforceable by the
person in any court of competent jurisdiction if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such persons expenses incurred in connection with
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successfully establishing his or her right to indemnification, in whole or in
part, in any such action shall also be indemnified by the Corporation. It shall
be a defense to any such action (other than an action brought to enforce a claim
for the advancement of expenses under Section 3 of this Article where the
required undertaking has been received by the Corporation) that the claimant has
conducted himself or herself in a manner which would preclude the Corporation
from indemnifying him or her pursuant to Sections 1 or 2 of this Article, but
the burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, its independent
legal counsel, and its shareholders) to have made a determination that
indemnification of the claimant is proper in the circumstances, nor the fact
that there has been an actual determination by the Corporation (including its
Board of Directors, its independent legal counsel, and its shareholders) that
indemnification of the claimant is not proper in the circumstances shall be a
defense to the action or create a presumption that the claimant is not entitled
to indemnification.
Section 5. Survival; Savings Clause; Preservation of Other Rights.
(a) The foregoing indemnification provisions shall be deemed to be a
contract between the Corporation and each person who serves in such
capacity at any time while these provisions are in effect, and any repeal
or modification of the New York Business Corporation Law shall not affect
any right or obligation then existing with respect to any state of facts
then or previously existing or any action or proceeding previously or
thereafter brought or threatened based in whole or in part upon any such
state of facts, except as provided by law. Such a contract right may not
be modified retroactively without the consent of such person, except as
provided by law.
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(b) If this Article or any portion hereof shall be invalidated on
any ground by any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify each person against judgments, fines, amounts
paid in settlement and expenses (including attorneys' fees) incurred in
connection with any actual or threatened action or proceeding, whether
civil or criminal, including any actual or threatened action by or in the
right of the Corporation, or any appeal therein, to the full extent
permitted by any applicable portion of this Article that shall not have
been invalidated and to the full extent permitted by applicable law.
(c) The indemnification provided by this Article shall not be deemed
exclusive of any other rights to which those indemnified may be entitled
under any other by-law, agreement, vote of shareholders or directors or
otherwise, both as to action in his or her official capacity and as to
action in another capacity while holding such office, and shall continue
as to a person who has ceased to be a director or officer and shall inure
to the benefit of the heirs, executors and administrators of such a
person. The Corporation is hereby authorized to provide further
indemnification if it deems advisable by resolution of shareholders or
directors, by amendment of these by-laws or by agreement.
Section 6. New York Business Corporation Law. All references to the New
York Business Corporation Law in this Article IX shall mean such Law as it may
from time to time be amended.
Section 7. Insurance. The Corporation may purchase and maintain insurance
to indemnify officers, directors and others against costs or liabilities
incurred by them in connection with the performance of their duties and any
activities undertaken by them for, or at the request of, the Corporation, to the
fullest extent permitted by the New York Business Corporation Law.
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ARTICLE X
SECURITY
The Board of Directors may require any officer, agent or employee to give
security for the faithful performance of his or her duties.
ARTICLE XI
AMENDMENTS
Any By-Law, including this Article XI, may be amended or repealed, in
whole or in part, and new by-laws may be adopted, only (i) by the affirmative
vote of the holders of record of 2/3rds in voting power of all issued and
outstanding shares of stock of the Corporation entitled to vote, or (ii) by the
affirmative vote of a majority of the entire Board of Directors.
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