EXHIBIT 3
BY-LAWS
OF
K2 INC.
ARTICLE I
OFFICES
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The Corporation shall maintain a registered office in the State of Delaware
as required by law. The Corporation may also have offices at other places,
within and without the State of Delaware.
ARTICLE II
STOCKHOLDERS
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SECTION 1. Annual meetings of stockholders shall be held at such times and
such places, within or without the State or Delaware, as may be fixed from time
to time by the Board of Directors.
SECTION 2. Except as otherwise required by statute or the Corporation's
Certificate of Incorporation, special meetings of stockholders may be called by
the Board of Directors or the Chairman of the Board. Special meetings of
stockholders shall be held on such dates and at such times and such places,
within or without the State of Delaware, as shall be stated in the notices of
such meetings. Notice of any special meeting shall state the purpose or
purposes for which the meeting is to be held and no other business shall be
transacted except as stated in such notice.
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SECTION 3. The holders of a majority of the issued and outstanding shares
of the capital stock of the Corporation entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum for the transaction of
business at all meetings of stockholders.
SECTION 4. Except as otherwise required by statute, the Corporation's
Certificate of Incorporation or these By-Laws, all matters coming before any
meeting of stockholders shall be decided by the vote of the holders of a
majority of the shares of capital stock of the Corporation present in person or
represented by proxy at such meeting and voting thereon, a quorum being present.
SECTION 5. The Board of Directors, or, if the Board shall not have made
the appointment, the chairman presiding at any meeting of stockholders, shall
have power to appoint two or more persons to act as inspectors, to receive,
canvass and report the votes cast by the stockholders at such meeting.
SECTION 6. The Chairman of the Board shall preside at all meetings of
stockholders; and in his absence, the Board of Directors may appoint a person to
act as chairman of the meeting.
SECTION 7. The Secretary or an Assistant Secretary shall act as secretary
at all meetings of stockholders; and in their absence, the chairman of the
meeting shall appoint a person to act as secretary of the meeting.
SECTION 8. At any meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the Board or (ii) by any stockholder of the Corporation who
complies with the notice
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procedures set forth in this Section 8 and Section 9 of Article II. For business
to be properly brought before any meeting of the stockholders by a stockholder,
the stockholder must have given notice thereof in writing to the Secretary of
the Corporation not less than 90 days in advance of such meeting or, if later,
the tenth day following the first public announcement of the date of such
meeting, and such business must be a proper matter for stockholder action under
the General Corporation Law of the State of Delaware. A stockholder's notice to
the Secretary shall set forth as to each matter the stockholder proposes to
bring before the meeting (1) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at the
meeting, (2) the name and address, as they appear on the Corporation's books, of
the stockholder proposing such business, (3) the class and number of shares of
the Corporation that are beneficially owned by the stockholder, and (4) any
material interest of the stockholder in such business. In addition, the
stockholder making such proposal shall promptly provide any other information
reasonably requested by the Corporation. The chairman of any such meeting shall
have the power and the duty to determine whether any business proposed to be
brought before the meeting has been made in accordance with the procedure set
forth in these By-Laws and shall direct that any business not properly brought
before the meeting shall not be considered. Notwithstanding anything in these
By-Laws to the contrary, no business shall be conducted at any meeting of the
stockholders except in accordance with the procedures set forth in this Section
8 and Section 9 of Article II. For purposes of this Section 8 and Section 9 of
Article II, "public announcement" shall
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mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a 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 Securities Exchange Act of 1934, as amended, or
any successor provision.
SECTION 9. Nominations for the election of directors may be made by the
Board or by any stockholder entitled to vote in the election of directors;
provided, however, that a stockholder may nominate a person for election as a
director at a meeting only if written notice of such stockholder's intent to
make such nomination has been given to the Secretary of the Corporation not
later than 90 days in advance of such meeting or, if later, the tenth day
following the first public announcement of the date of such meeting. Each such
notice shall set forth: (i) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (ii) a
representation that the stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting and nominate the person or persons specified in the
notice; (iii) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (iv) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission had the
nominee been nominated, or intended to
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be nominated, by the Board; and (v) the consent of each nominee to serve as a
director of the Corporation if so elected. In addition, the stockholder making
such nomination shall promptly provide any other information reasonably
requested by the Corporation. Notwithstanding the foregoing provisions of this
Section 9 of Article II, in the event that the number of directors to be elected
to the Board is increased and there is no public announcement naming either all
of the nominees for director or specifying the size of the increased Board made
by the Corporation at least 100 days in advance of such meeting, a stockholder's
notice required by this Section 9 of Article II shall 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 of the Corporation not later than the
tenth day following the day on which such public announcement is first made by
the Corporation. No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 9 of Article II. The chairman of any meeting of stockholders shall have
the power and the duty to determine whether a nomination has been made in
accordance with the procedure set forth in this Section 9 of Article II and
shall direct that any nomination not made in accordance with these procedures be
disregarded.
ARTICLE III
BOARD OF DIRECTORS
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SECTION 1. The business and affairs of the Corporation shall be managed by
or under direction of the Board of Directors. The directors shall elect one of
their members to be Chairman of the Board, who shall perform such duties as are
provided
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in these By-Laws or are from time to time assigned by the Board. The Chairman of
the Board may, but need not, be an officer of the Corporation.
SECTION 2. Regular meetings of the Board of Directors shall be held on
such dates and at such times and such places, within or without the State of
Delaware, as shall be fixed from time to time by the Board.
SECTION 3. Special meetings of the Board of Directors may be called by the
Chairman of the Board and shall be called by the Chairman of the Board or the
Secretary upon a request in writing by any four directors. Notice shall be
given of the date, time and place of each special meeting (i) by mailing the
same at least three days before the meeting to each director via first-class
mail, (ii) by telephone, facsimile transmission or personal delivery of the
same at least 24 hours before the meeting to each director or (iii) by sending
the same at least two days before the meeting to each director via overnight
courier for next-day delivery. Except as otherwise specified in the notice
thereof, or as required by statute, any and all business may be transacted at
any special meeting of the Board of Directors.
SECTION 4. The Chairman of the Board shall preside at all meetings of the
Board of Directors; and in his absence, the Board of Directors may appoint any
other person to act as chairman of the meeting. Less than a quorum of the
Board may adjourn any meeting from time to time until a quorum shall be present,
whereupon the meeting may be held, as adjourned, without further notice.
SECTION 5. With the consent of the Chairman or a majority of the Board of
Directors, any director may participate in a meeting of the Board of Directors
by
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telephone, and a meeting of the Board of Directors may be conducted entirely by
telephone, provided that all of the directors can speak and hear one another.
ARTICLE IV
COMMITTEES
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SECTION 1. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate from among its own members such committees as the
Board may determine. Each such committee shall have such powers of the Board of
Directors, not prohibited by statute, as the Board shall from time to time
authorize.
SECTION 2. A majority of a committee shall constitute a quorum for the
transaction of business. Each committee shall keep regular minutes of its
meetings and shall report the same to the Board of Directors when requested.
The Board of Directors may discharge any committee or any member thereof either
with or without cause at any time.
ARTICLE V
OFFICERS
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SECTION 1. The Board of Directors shall elect the following officers:
Chief Executive Officer, President, one or more Vice Presidents, Treasurer and
Secretary and such other officers as it may from time to time determine.
SECTION 2. The term of office of all officers shall be for one year and
until their respective successors are elected and qualified. The Board of
Directors may remove any officer either with or without cause at any time.
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SECTION 3. The Chief Executive shall be the chief executive officer of the
Corporation and shall have such powers and duties as generally pertain to the
responsibilities of chief executive officer, including the management of the
business and affairs of the Corporation, subject only to the Board of Directors.
The President (if he is not the Chief Executive Officer) subject and reporting
to the Chief Executive Officer, shall be the chief operating officer of the
Corporation, and shall have such powers and duties as generally pertain to the
responsibilities of chief operating officer as may be determined from time to
time by the Chief Executive Officer. The other officers of the Corporation,
subject and reporting to the Chief Executive Officer and/or the President, as
determined from time to time by the Chief Executive Officer, shall each have
such powers and duties as generally pertain to their respective offices. Any
officer of the Corporation shall in addition have such powers and duties as may
be conferred by the Board of Directors.
SECTION 4. Unless otherwise ordered by the Board of Directors, the Chief
Executive Officer and any other officer whom he may designate shall have full
power and authority on behalf of the Corporation to attend and to vote at any
meetings of stockholders of any corporation in which this Corporation may hold
stock, and may exercise on behalf of this Corporation any and all of the rights
and powers incident to the ownership of such stock at any such meeting, and
shall have power and authority to execute and deliver proxies, waivers and
consents on behalf of the Corporation in connection with the exercise by the
Corporation of the rights and powers incident to the
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ownership of such stock. The Board of Directors may from time to time confer
like powers upon any other person or persons.
ARTICLE VI
CAPITAL STOCK
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SECTION 1. Certificates for stock of the Corporation shall be in such form
as the Board of Directors may from time to time prescribe.
SECTION 2. The Board of Directors shall have power to appoint one or more
transfer agents and/or registrars for the transfer and/or registration of
certificates for shares of stock of any class or series and may require that
stock certificates shall be countersigned and/or registered by one or more of
such transfer agents and/or registrars.
SECTION 3. Shares of capital stock of the Corporation shall be
transferable on the books of the Corporation only by the holder of record
thereof in person or by his duly authorized attorney, upon surrender and
cancellation of certificates for a like number of shares, with an assignment or
power of transfer endorsed thereon or delivered therewith, duly executed, and
with such proof of the authenticity of the signature and of authority to
transfer, and of payment of transfer taxes, as the Corporation or its agents may
require.
SECTION 4. In case any certificate for the capital stock of the
Corporation shall be lost, stolen or destroyed, the Corporation may require such
proof of the fact and such indemnity to be given to it and/or to its transfer
agent and/or registrar, if any, as it shall deem necessary or advisable.
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SECTION 5. The Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder thereof in fact, and shall not be
bound to recognize any equitable or other claim to or interest in such shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise expressly provided by law.
ARTICLE VII
MISCELLANEOUS
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SECTION 1. The seal of the Corporation shall be circular in form and
shall contain the name of the Corporation and the year and state of
incorporation.
SECTION 2. The Board of Directors shall have the power to fix, and from
time to time to change, the fiscal year of the Corporation.
ARTICLE VIII
AMENDMENT
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The Board of Directors shall have the power to adopt, alter and repeal By-
Laws of the Corporation at any regular or special meeting of the Board, subject
to the power of the stockholders to alter or repeal any By-Law adopted or
altered by the Board of Directors. By-Laws may be adopted, altered or repealed
by the stockholders by the vote of the holders of a majority of the outstanding
shares entitled to vote thereon provided that notice of the proposed adoption,
alteration or repeal shall have been given in the notice of such meeting of
stockholders.
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