Exhibit 3.2
FORM OF
BY-LAWS
OF
ASI SOLUTIONS INCORPORATED
ARTICLE I
Offices
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The registered office of ASI Solutions Incorporated (the "Corporation")
shall be in the City of Dover, County of Kent, State of Delaware. The
Corporation also may have offices at such other places, within or without the
State of Delaware, as the Board of Directors (the "Board") determines from time
to time or the business of the Corporation requires. Until such time as the
Board otherwise determines, the Corporation shall also have an office in the
City, County and State of New York.
ARTICLE II
Meetings of Stockholders
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Section 1. Place of Meetings. Except as otherwise provided in these By-
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Laws, all meetings of the stockholders shall be held on such dates and at such
times and places, within or without the State of Delaware, as shall be
determined by the Board and as shall be stated in the notice of the meeting or
in waivers of notice thereof. If the place of any meeting is not so fixed, it
shall be held at the registered office of the Corporation in the State of
Delaware.
Section 2. Annual Meetings. The annual meeting of stockholders for the
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election of directors and the transaction of such other proper business as may
be brought before the meeting shall be held on such date after the close of the
Corporation's fiscal year, and at such time, as the Board may from time to time
determine.
Section 3. Special Meetings. Special meetings of stockholders, for any
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purpose or purposes, may be called by the Chairman of the Board or by the
Chairman of the Board upon the request of at least 50% of the members of the
Board.
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Section 4. Notice of Meetings. Except as otherwise required by law,
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whenever the stockholders are required or permitted to take any action at a
meeting, written notice thereof shall be given, stating the place, date and time
of the meeting and, unless it is the annual meeting, by or at whose direction it
is being issued. The notice also shall designate the place where the
stockholders' list is available for examination, unless the list is kept at the
place where the meeting is to be held. Notice of a special meeting also shall
state the purpose or purposes for which the meeting is called. A copy of the
notice of any meeting shall be delivered personally or shall be mailed, not less
than ten (10) or more than sixty (60) days before the date of the meeting, to
each stockholder of record entitled to vote at the meeting. If mailed, the
notice shall be given when deposited in the United States mail, postage prepaid,
and shall be directed to each stockholder at his or her address as it appears on
the record of stockholders of the Corporation, or to such other address which
such stockholder may have filed by written request with the Secretary of the
Corporation. Notice of any meeting of stockholders shall be deemed waived by
any stockholder who attends the meeting, except when the stockholder attends the
meeting for the express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened, or by any stockholder who submits, either before or after the meeting,
a signed waiver of notice. Unless the Board, after the adjournment of a
meeting, shall fix a new record date for the adjourned meeting or unless the
adjournment is for more than thirty (30) days, notice of an adjourned meeting
need not be given if the place, date and time to which the meeting shall be
adjourned are announced at the meeting at which the adjournment is taken.
Section 5. Quorum. Except as otherwise provided by law or, by the
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Certificate of Incorporation of the Corporation, at all meetings of
stockholders, the holders of a majority of the outstanding shares of the
Corporation entitled to vote at the meeting shall be present in person or
represented by proxy in order to constitute a quorum for the transaction of
business.
Section 6. Voting. Except as otherwise provided by law or by the
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Certificate of Incorporation of the Corporation, at all meetings of the
stockholders, every stockholder of record having the right to vote thereat
shall be entitled to one vote for every share of stock standing in his or her
name as of the record date and entitling him or her to so vote. A stockholder
may vote in person or by proxy. Except as otherwise provided by law or by the
Certificate of Incorporation of the Corporation, any corporate action to be
taken by a vote of the stockholders, other than the election of directors, shall
be authorized by not less than a majority of the votes cast at a meeting by the
stockholders present in person or by proxy and entitled to vote thereon.
Directors shall be elected as provided in Section 3 of Article III of these By-
Laws. Written ballots shall not be required for voting on any matter unless
ordered by the Secretary of the meeting.
Section 7. Proxies. Every proxy shall be executed in writing by the
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stockholder or by his or her attorney-in-fact, or otherwise as provided in the
General Corporation Law of the State of Delaware (the "General Corporation
Law").
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Section 8. List of Stockholders. At least ten (10) days before every
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meeting of stockholders, a list of the stockholders (including their addresses)
entitled to vote at the meeting and their record holdings as of the record date
shall be open for examination by any stockholder, for any purpose germane to the
meeting, during ordinary business hours, at a place within the city where the
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,
The list also shall be kept at and throughout the meeting, and may be inspected
by any stockholder who is present.
Section 9. Conduct of Meetings. At each meeting of the stockholders, the
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Chairman of the Board or, in his or her absence, a director chosen by a majority
of the directors then in office shall act as chairman of the meeting. The
Secretary or, in his or her absence, any person appointed by the chairman of the
meeting shall act as secretary of the meeting and shall keep the minutes
thereof. Except as otherwise provided by law, at any annual or special meeting
of stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. Such business must have either been: (A)
brought before the meeting at the direction of the chairman of the meeting; or
(B) specified in a written notice given by or on behalf of a stockholder of
record on the record date for such meeting entitled to vote thereat or a duly
authorized proxy for such stockholder; provided, that the following actions, as
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described below, are taken. A notice must be delivered personally to, or mailed
to and received at, the principal executive office of the Corporation, addressed
to the attention of the Secretary, not less than sixty (60) days nor more than
ninety (90) days prior to the meeting; provided, however, that in the event that
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less than seventy (70) days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder to be
timely must be so received not later than the close of business on the tenth day
following the day on which such notice of the date of the annual or special
meeting was mailed or such public disclosure was made, whichever first occurs.
Such notice shall set forth: (i) a description of each such item of business
proposed to be brought before the meeting and the reasons for conducting such
business at such meeting; (ii) the name and address of the person proposing to
bring such business before the meeting; (iii) the class and number of shares
held of record, held beneficially and represented by proxy by such person as of
the record date for the meeting (if such date has then been made publicly
available) and as of the date of such notice; and (iv) any material interest of
the stockholder in such item of business. No business shall be brought before
any meeting of stockholders of the Corporation otherwise than as provided in
this Section 9. The chairman of the meeting may, if the facts warrant, determine
that a stockholder proposal was not made in accordance with the foregoing
procedure, and if he or she should so determine, he or she shall so declare to
the meeting and the defective proposal shall be disregarded.
Section 10. Written Consent to Action in Lieu of a Meeting. Stockholders
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may take such action by written consent as shall be permitted by section 228 of
the General Corporation Law provided, however, that if at any time a class of
stock of the Corporation becomes registered pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and the rules and regulations of
The Securities and Exchange Commission and such stock is being traded on a
nationally recognized exchange, any action to be taken at any annual or special
meeting of
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stockholders must be taken at a meeting.
ARTICLE III
Board
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Section 1. Number of Board Members. The business, property and affairs of
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the Corporation shall be managed under the direction of the Board, which shall
consist of three directors. Directors need not be stockholders of the
Corporation. The number of directors may be reduced or increased from time to
time by action of a majority of the entire Board, but no decrease may shorten
the term of an incumbent director. When used in these By-Laws, the phrase
"entire Board" means the total number of directors which the Corporation would
have if there were no vacancies.
Section 2. Nomination. Only persons who are nominated in accordance with
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the procedures set forth in these By-Laws shall be eligible to serve as
directors of the Corporation. Nominations of persons for election to the Board
of the Corporation 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, 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.
Such nominations, other than those made by or at the direction of the Board,
shall 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 sixty (60) days nor more than ninety (90) days prior to the meeting;
provided, however, that in the event that less than seventy (70) days' notice or
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prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the tenth (10th) day following the day on
which such notice the date of meeting or such public disclosure was made. Such
stockholder's notice shall set forth (x) 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 Exchange Act; and (y) as to the stockholder
giving the notice (A) the name and address, as they appear on the Corporation's
books, of such stockholder and (B) the class and number of shares of the
Corporation which are beneficially owned 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.
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
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prescribed by the By-Laws, and if he or she should so determine, he or she shall
so declare to the meeting and the defective nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section 2, a stockholder shall
also comply with all applicable requirements of the Exchange Act and the rules
and regulations thereunder with respect to the matters set forth in this
Section.
Section 3. Election and Term. Except as otherwise provided by law, by the
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Certificate of Incorporation of the Corporation or by these By-Laws, the
directors shall be elected at the annual meeting of the stockholders and the
persons receiving a plurality of the votes cast shall be so elected. Subject to
a director's earlier death, resignation or removal as provided in Sections 4 and
5 of this Article III, each director shall hold office until his or her
successor shall have been duly elected and shall have qualified.
Section 4. Removal. A director may be removed at any time, only for
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cause, and only by the vote of the holders of two thirds of the outstanding
shares of the Corporation entitled to vote at an election of directors.
Section 5. Resignations. Any director may resign at any time by giving
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written notice of his or her resignation to the Corporation. A resignation
shall take effect at the time specified therein or, if the time when it shall
become effective shall not be specified therein immediately upon its receipt,
and, unless otherwise specified therein, the acceptance of a resignation shall
not be necessary to make it effective.
Section 6. Vacancies. Except as otherwise provided by the Certificate of
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Incorporation of the Corporation, any vacancy in the Board arising from an
increase in the number of directors or otherwise shall be filled only by the
vote of a majority of the directors then in office. Subject to his or her
earlier death, removal or resignation as provided in Sections 4 and 5 of this
Article III, each director so elected shall hold office until his successor
shall have been duly elected and shall have qualified.
Section 7. Place of Meetings. Except as otherwise provided in these By-
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Laws, all meetings of the Board shall be held at such places, within or without
the State of Delaware, as the Board determines from time to time.
Section 8. Annual Meeting. The annual meeting of the Board shall be held
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either (a) without notice immediately after the annual meeting of stockholders
and in the same place, or (b) as soon as practicable after the annual meeting of
stockholders on such date and at such time and place as the Board determines.
Section 9. Regular Meetings. Regular meetings of the Board shall be held
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on such dates and at such places and times as the Board determines. Notice of
regular meetings need not be given, except as otherwise required by law.
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Section 10. Special Meetings. Special meetings of the Board may be called
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by the Chairman of the Board and shall be called by the Chairman of the Board or
the Secretary upon the written request of not less than a majority of directors.
The request shall state the date, time, place and purpose or purposes of the
proposed meeting.
Section 11. Notice of Meetings. Notice of each special meeting of the
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Board (and of each annual meeting held pursuant to subdivision (b) of Section 8
of this Article III) shall be given, not later than 24 hours before the meeting
is scheduled to commence, by the Chairman of the Board or the secretary and
shall state the place, date and time of the meeting. Notice of each meeting may
be delivered to a director by hand or given to a director orally (whether by
telephone or in person) or mailed or telecopied to a director at his or her
residence or usual place of business, provided, however, that if notice of less
than 72 hours is given it may not be mailed. If mailed, the notice shall be
deemed to have been given when deposited in the United States mail, postage
prepaid, and if telecopied, the notice shall be deemed to have been given when
oral confirmation of receipt is given. Notice of any meeting need not be given
to any director who shall submit, either before or after the meeting, a signed
waiver of notice or who shall attend the meeting, except if such director shall
attend for the express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened. Notice of any adjourned meeting, including the place, date and time of
the new meeting, shall be given to all directors not present at the time of the
adjournment, as well as to the other directors unless the place, date and time
of the new meeting is announced at the adjourned meeting.
Section 12. Quorum. Except as otherwise provided by law or these By-Laws,
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at all meetings of the Board a majority of the entire Board shall constitute a
quorum for the transaction of business, and the vote of a majority of the
directors present at a meeting at which a quorum is present shall be the act of
the Board. A majority of the directors present, whether or not a quorum is
present, may adjourn any meeting to another place, date and time.
Section 13. Conduct of Meetings. At each meeting of the Board, the
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secretary of the Board or, in his or her absence, a director chosen by a
majority of the directors present shall act as secretary of the meeting. The
secretary or, in his or her absence, any person appointed by the secretary of
the meeting shall act as secretary of the meeting and keep the minutes thereof.
The order of business at all meetings of the Board shall be as determined by the
secretary of the meeting.
Section 14. Committees of the Board. The Board, by resolution adopted by
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a majority of the entire Board, may designate an audit committee, compensation
committee, executive committee and other committees, each consisting of one (1)
or more directors. Each committee (including the members thereof) shall serve
at the pleasure of the Board and shall keep minutes of its meetings and report
the same to the Board. The Board may designate one or more directors as
alternate members of any committee. Alternate members may replace any absent or
disqualified member or members at any meeting of a committee. Except as limited
by law, each
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committee, to the extent provided in the resolution establishing it, shall have
and may exercise all the powers and authority of the Board with respect to all
matters.
Section 15. Operation of Committees. A majority of all of the members of
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a committee shall constitute a quorum for the transaction of business, and the
vote of a majority of all the members of a committee present at a meeting at
which a quorum is present shall be the act of the committee. Each committee
shall adopt whatever other rules of procedure it determines for the conduct of
its activities.
Section 16. Written Consent to Action in Lieu of a Meeting. Any action
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required or permitted to be taken at any meeting of the Board or of any
committee 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.
Section 17. Meetings Held Other Than in Person. Members of the Board or
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any committee may participate in a meeting of the Board or committee, as the
case may be, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
and speak with each other, and such participation shall constitute presence in
person at the meeting.
ARTICLE IV
Officers
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Section 1. Executive Officers Etc.. The executive officers of the
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Corporation shall be a Chairman of the Board, a President, a Secretary and a
Treasurer. The Board also may elect or appoint one or more Vice Presidents (any
of whom may be designated as Executive Vice Presidents, Senior Vice Presidents
or otherwise), and any other officers it deems necessary or desirable for the
conduct of the business of the Corporation, each of whom shall have such powers
and duties as the Board determines.
Section 2. Duties.
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(a) The Chairman of the Board. The Chairman of the Board who shall
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be a member of the Board, shall be the chief executive officer of the
Corporation. The Chairman of the Board of Directors shall preside at all
meetings of the stockholders and the Board.
(b) The President. The President shall perform, in the absence or
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disability of the Chairman of the Board, the duties and exercise the powers of
the Chairman of the Board and shall have such other powers and duties as the
Board or the Chairman of the Board assigns to him or to her.
(c) The Vice President. The Vice President or, if there shall be
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more than
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one, the Vice Presidents, if any, in the order of their seniority or in any
other order determined by the Board, shall perform, in the absence or disability
of the President, the duties and exercise the powers of the President and shall
have such other powers and duties as the Board or the President assigns to him
or to her or to them.
(d) The Secretary. Except as otherwise provided in these By-Laws
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or as directed by the Board, the Secretary shall attend all meetings of the
stockholders and the Board; shall record the minutes of all proceedings in books
to be kept for that purpose; shall give notice of all meetings of the
stockholders. and special meetings of the Board; and shall keep in safe custody
the seal of the Corporation and, when authorized by the Board, shall affix the
same to any corporate instrument. The Secretary shall have such other powers and
duties as the Board or the Chairman of the Board assigns to him or her.
(e) The Treasurer. Subject to the control of the Board, the
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Treasurer shall have the care and custody of the corporate funds and the books
relating thereto; shall perform all other duties incident to the office of
treasurer; and shall have such other powers and duties as the Board or Chairman
of the Board assigns to him or her.
Section 3. Election; Removal. Subject to his or her earlier death,
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resignation or removal, as hereinafter provided, each officer shall hold his or
her office until his or her successor shall have been duly elected and shall
have qualified. Any officer may be removed at any time with or without cause by
the Board.
Section 4. Resignations. Any officer may resign at any time by giving
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written notice of his resignation to the Corporation. A resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not be
necessary to make it effective.
Section 5. Vacancies. If an office becomes vacant for any reason, the
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Board or the stockholders may fill the vacancy, and each officer so elected
shall serve for the remainder of his or her predecessor's term and until his
successor shall have been elected or appointed and shall have qualified.
ARTICLE V
Provisions Relating to Stock Certificates and Stockholders
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Section 1. Certificates. Certificates for the Corporation's capital
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stock shall be in such form as required by law and as approved by the Board.
Each certificate shall be signed in the name of the Corporation by the
Secretary, or the Chairman of the Board or President or any Vice President and
by the Secretary, the Treasurer or any Assistant Secretary or any Assistant
Treasurer and shall bear the seal of the Corporation or a facsimile thereof. If
any certificate is
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countersigned by a transfer agent or registered by a registrar, other than the
Corporation or its employees, the signature of any officer of the Corporation
may be a facsimile signature. In case any officer, transfer agent or registrar
who shall have signed or whose facsimile signature as placed on any certificate
shall have ceased to be such officer, transfer agent or registrar before the
certificate shall be issued, it may nevertheless be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of the issue.
Section 2. Lost Certificates, etc. The Corporation may issue a new
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certificate for shares in place of any certificate theretofore issued by it,
alleged to have been lost, mutilated, stolen or destroyed, and the Board may
require the owner of the lost, mutilated, stolen or destroyed certificate, or
his or her legal representatives, to make an affidavit of that fact and to give
the Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation on account of the alleged loss,
mutilation, theft or destruction of the certificate or the issuance of a new
Certificate.
Section 3. Transfers of Shares. Transfers of shares shall be registered
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on the books of the Corporation maintained for that purpose after due
presentation of the stock certificates therefor appropriately endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer.
Section 4. Record Date. For the purpose of determining the stockholders
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entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or the allotment of any
rights, or for the purpose of any other 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 by the Board, and which record date shall not be more
than sixty (60) nor less than ten (10) days before the date of any such meeting
and shall not be more than sixty (60) days prior to any other action.
ARTICLE VI
Indemnification
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Section 1. Indemnification. The Corporation shall, to the fullest extent
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permitted by the General Corporation Law (including, without limitation, Section
145 thereof) or other provisions of the laws of Delaware relating to
indemnification of directors, officers, employees and agents, as the same may be
amended and supplemented from time to time, indemnify any and all such persons
whom it shall have power to indemnify under the General Corporation Law or such
other provisions of law.
Section 2. Statutory Indemnification. Without limiting the generality of
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Section 1 of this Article VI, to the fullest extent permitted, and subject to
the conditions imposed, by law, and pursuant to Section 145 of the General
Corporation Law unless otherwise determined by the
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Board of Directors:
(i) the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against reasonable expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding if
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful; and
(ii) the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against reasonable expenses (including attorney's fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Corporation, except as
otherwise provided by law.
Section 3. Indemnification by Resolution of Stockholders or Directors
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of Agreement. To the fullest extent permitted by law, indemnification may be
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granted, and expenses may be advanced, to the persons described in Section 145
of the General Corporation Law or other provisions of the laws of Delaware
relating to indemnification and advancement of expenses, as from time to time
may be in effect, by (i) a resolution of stockholders, (ii) a resolution of
the Board, or (iii) an agreement providing for such indemnification and
advancement of expenses; provided that no indemnification may be made to or on
behalf of any person if a judgment or other final adjudication adverse to the
person establishes that such person's acts were committed in bad faith or were
the result of active and deliberate dishonesty and were material to the cause of
action so adjudicated, or that such person personally gained in fact a financial
profit or other advantage to which such person was not legally entitled.
Section 4. General. It is the intent of this Article VI to require the
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Corporation to indemnify the persons referred to herein for judgments, fines,
penalties, amounts paid in settlement and expenses (including attorneys' fees),
and to advance expenses to such persons, in each and every circumstance in which
such indemnification and such advancement of expenses could lawfully be
permitted by express provision of By-Laws, and the indemnification and expense
advancement provided by this Article VI shall not be limited by the absence of
an
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express recital of such circumstances. The indemnification and advancement of
expenses provided by, or granted pursuant to, these By-Laws shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
advancement of expenses may be entitled, whether as a matter of law, under any
provision of the Certificate of Incorporation of the Corporation or these By-
Laws, by agreement, by vote of stockholders or disinterested directors of the
Corporation or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
Section 5. Indemnification Benefits. Indemnification pursuant to these
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By-Laws shall inure to the benefit of the heirs executors, administrators and
personal representatives of those entitled to indemnification.
ARTICLE VII
General Provisions
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Section 1. Dividends Etc. To the extent permitted by law, the Board
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shall have full power and discretion, subject to the provisions of the
Certificate of Incorporation of the Corporation and the terms of any other
corporate document or instrument binding upon the Corporation, to determine
what, if any, dividends or distributions shall be declared and paid or made.
Section 2. Seal. The Corporation's seal shall be in such form as is
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required by law and as shall be approved by the Board.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
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determined by the Board.
Section 4. Voting Shares in Other Corporations. Unless otherwise directed
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by the Board, shares in other corporations which are held by the Corporation
shall be represented and voted only by the Chairman of the Board or by a proxy
or proxies appointed by him or her.
ARTICLE VIII
Amendment
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By-Laws may be made, altered or repealed by the Board, subject to the right
of stockholders to alter or repeal any By-Laws made by the Board.
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