EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
PNY TECHNOLOGIES, INC.
OCTOBER 2000
TABLE OF CONTENTS
Page
ARTICLE I Office and Records............................................................................................1
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Section 1.1 Delaware Office..............................................................................1
Section 1.2 Other Offices................................................................................1
Section 1.3 Books and Records............................................................................1
ARTICLE II Stockholders..................................................................................................2
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Section 2.1 Annual Meeting...............................................................................2
Section 2.2 Special Meetings.............................................................................2
Section 2.3 Notice of Meetings...........................................................................2
Section 2.4 Quorum.......................................................................................3
Section 2.5 Voting.......................................................................................4
Section 2.6 Proxies......................................................................................5
Section 2.7 Notice of Stockholder Business and Nominations...............................................5
Section 2.8 Inspectors of Elections; Opening and Closing the Polls.......................................9
Section 2.9 List of Stockholders.........................................................................9
Section 2.10 No Stockholder Action by Written Consent....................................................10
ARTICLE III Directors....................................................................................................10
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Section 3.1 General Powers..............................................................................10
Section 3.2 Number, Tenure and Qualifications...........................................................11
Section 3.3 Vacancies and Newly Created Directorships...................................................11
Section 3.4 Resignation.................................................................................12
Section 3.5 Removal.....................................................................................12
Section 3.6 Meetings....................................................................................12
Section 3.7 Quorum and Voting...........................................................................13
Section 3.8 Written Consent of Directors in Lieu of a Meeting...........................................14
Section 3.9 Compensation................................................................................14
Section 3.10 Committees of the Board of Directors........................................................14
ARTICLE IV Officers.....................................................................................................15
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Section 4.1 Elected Officers............................................................................15
Section 4.2 Election and Term of Office.................................................................16
Section 4.3 Resignation and Removal.....................................................................16
Section 4.4 Compensation and Bond.......................................................................16
Section 4.5 Chairman of the Board.......................................................................17
Section 4.6 President...................................................................................17
Section 4.7 Vice Presidents.............................................................................17
Section 4.8 Treasurer...................................................................................18
Section 4.9 Secretary...................................................................................18
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Page
Section 4.10 Assistant Treasurers..............................................................................18
Section 4.11 Assistant Secretaries.............................................................................19
Section 4.12 Delegation of Duties..............................................................................19
ARTICLE V Indemnification and Insurance................................................................................19
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Section 5.1 Right to Indemnification....................................................................19
Section 5.2 Right to Advancement of Expenses............................................................20
Section 5.3 Right of Indemnitee to Bring Suit...........................................................21
Section 5.4 Non-Exclusivity of Rights...................................................................22
Section 5.5 Insurance...................................................................................22
Section 5.6 Indemnification of Employees and Agents of the Corporation..................................22
Section 5.7 Contract Rights.............................................................................22
ARTICLE VI Common Stock.................................................................................................23
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Section 6.1 Certificates................................................................................23
Section 6.2 Transfers of Stock..........................................................................23
Section 6.3 Lost, Stolen or Destroyed Certificates......................................................24
Section 6.4 Stockholder Record Date.....................................................................24
ARTICLE VII Seal.........................................................................................................25
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Section 7.l Seal........................................................................................25
ARTICLE VIII Waiver of Notice.............................................................................................25
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Section 8.1 Waiver of Notice............................................................................25
ARTICLE IX Checks, Notes, Drafts, Etc. .................................................................................26
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Section 9.1 Checks, Notes, Drafts, Etc..................................................................26
ARTICLE X Amendments...................................................................................................26
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Section 10.1 Amendments...............................................................................26
ii
AMENDED AND RESTATED
BYLAWS
OF
PNY TECHNOLOGIES, INC.
ARTICLE I
Office and Records
Section 1.1 Delaware Office. The principal office of the
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Corporation in the State of Delaware shall be located in the City of Wilmington,
County of New Castle, and the name and address of its registered agent is The
Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware.
Section 1.2 Other Offices. The Corporation may have such
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other offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
Section 1.3 Books and Records. The books and records of the
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Corporation may be kept at the Corporation's principal executive offices in
Parsippany, New Jersey or at such other locations outside the State of Delaware
as may from time to time be designated by the Board of Directors.
ARTICLE II
Stockholders
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Section 2.1 Annual Meeting. The annual meeting of
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stockholders of the Corporation shall be held on such date, at such time and at
such place as may be fixed by the Board of Directors.
Section 2.2 Special Meetings. Subject to the rights of the
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holders of any series of preferred stock, par value $.0l per share, of the
Corporation (the "Preferred Stock"), or any other series or class of stock as
set forth in the Amended and Restated Certificate of Incorporation of the
Corporation (the "Certificate of Incorporation") to elect additional directors
under specified circumstances, a special meeting of the holders of stock of the
Corporation entitled to vote on any business to be considered at any such
meeting may be called only by the Chairman of the Board of the Corporation, and
shall be called by the Secretary of the Corporation at the request of the Board
of Directors pursuant to a resolution adopted by a majority of the total number
of directors which the Corporation would at the time have if there were no
vacancies (the "Whole Board"). The Board of Directors may designate the place of
meeting for any special meeting of the stockholders, and if no such designation
is made, the place of meeting shall be the principal executive offices of the
Corporation.
Section 2.3 Notice of Meetings. Whenever stockholders are
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required or permitted to take any action at a meeting, unless notice is waived
as provided in Section 8.1 of these Bylaws, a written notice of the meeting
shall be given which shall state the place, date and hour of the meeting, and,
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in the case of a special meeting, the purpose or purposes for which the meeting
is called.
Unless otherwise provided by law, and except as to any
stockholder duly waiving notice, the written notice of any meeting shall be
given personally or by mail, not less than ten (10) nor more than sixty (60)
days before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, notice shall be deemed given when deposited in the mail,
postage prepaid, directed to the stockholder at his or her address as it appears
on the records of the Corporation. Any previously scheduled meeting of the
stockholders may be postponed by resolution of the Board of Directors upon
public notice given prior to the time previously scheduled for such meeting of
stockholders.
When a meeting is adjourned to another time or place,
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. If, however, the adjournment is for more
than thirty (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.
Section 2.4 Quorum. Except as otherwise provided by law or
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by the Certificate of Incorporation or by these Bylaws, at any meeting of
stockholders the holders of a majority of the voting power of the outstanding
shares of the Corporation entitled to vote generally in the election of
directors (the "Voting Stock"), either present or represented by proxy, shall
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constitute a quorum for the transaction of any business at such meeting, except
that when specified business is to be voted on by a class or series voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum for the transaction of such business. The chairman of the
meeting or a majority of the voting power of the shares of Voting Stock so
represented may adjourn the meeting from time to time, whether or not there is
such a quorum (or in the case of specified business to be voted on as a class or
series, the chairman or a majority of the shares of such class or series so
represented may adjourn the meeting with respect to such specified business). No
notice of the time and place of adjourned meetings need be given except as
provided in the last paragraph of Section 2.3 of these Bylaws. The stockholders
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders to leave less
than a quorum.
Section 2.5 Voting. Except as otherwise set forth in the
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Certificate of Incorporation with respect to the right of any holder of any
series of Preferred Stock or any other series or class of stock to elect
additional directors under specified circumstances, whenever directors are to be
elected at a meeting, they shall be elected by a plurality of the votes cast at
the meeting by the holders of stock entitled to vote. Whenever any corporate
action, other than the election of directors, is to be taken by vote of
stockholders at a meeting, such corporate action shall, except as otherwise
required by law or by the Certificate of Incorporation or by these Bylaws, be
authorized by the affirmative vote of the holders of a majority of the shares of
stock present or represented by proxy and entitled to vote with respect to such
corporate action.
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Except as otherwise provided by law, or by the Certificate
of Incorporation, each holder of record of stock of the Corporation entitled to
vote on any matter at any meeting of stockholders shall be entitled to one vote
for each share of such stock standing in the name of such holder on the stock
ledger of the Corporation on the record date for the determination of the
stockholders entitled to vote at the meeting.
Upon the demand of any stockholder entitled to vote, the
vote for directors or the vote on any other matter at a meeting shall be by
written ballot, but otherwise the method of voting and the manner in which votes
are counted shall be discretionary with the presiding officer at the meeting.
Section 2.6 Proxies. Each stockholder entitled to vote at a
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meeting of stockholders may authorize another person or persons to act for him
or her by proxy, but no such proxy shall be voted or acted upon after three (3)
years from its date, unless the proxy provides for a longer period. Every proxy
shall be signed by the stockholder or by his duly authorized attorney. Such
proxy must be filed with the Secretary of the Corporation or his or her
representative at or before the time of the meeting.
Section 2.7 Notice of Stockholder Business and Nominations.
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(A) Annual Meeting of Stockholders.
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(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (a) by or at
the direction of the Chairman of the Board or the Board of Directors pursuant to
a resolution adopted by a majority of the Whole Board or (b) by any stockholder
5
of the Corporation who is entitled to vote at the meeting with respect to the
election of directors or the business to be proposed by such stockholder, as the
case may be, who complies with the notice procedures set forth in clauses (2)
and (3) of paragraph (A) of this Section 2.7 and who is a stockholder of record
at the time such notice is delivered to the Secretary of the Corporation as
provided below.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (b) of
paragraph (A)(1) of this Section 2.7, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation and such business
must be a proper subject for stockholder action under the Delaware General
Corporation Law (the "GCL"). To be timely, a stockholder's notice shall be
delivered to the Secretary of the Corporation at the principal executive offices
of the Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is advanced by
more than thirty (30) days, or delayed by more than sixty (60) days, from such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the ninetieth (90th) day prior to such annual meeting and not
later than the close of business on the later of the sixtieth (60th) day prior
to such annual meeting or the tenth (10th) day following the day on which public
announcement of the date of such meeting is first made. 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
6
"Exchange 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; (b) as to
any other business that the stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 2.7 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Corporation
at least eighty (80) days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by paragraph (A)(2) of this
Section 2.7 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the tenth (10th) day
following the day on which such public announcement is first made by the
Corporation.
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(B) Special Meeting of Stockholders. Nominations of persons
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for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected (i) by or at the direction of
the Chairman of the Board or the Board of Directors pursuant to a resolution
adopted by a majority of the Whole Board or (ii) by any stockholder of the
Corporation who is entitled to vote at the meeting with respect to the election
of directors, who complies with the notice procedures set forth in this
paragraph (B) and who is a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation as provided below. Nominations by
stockholders of persons for election to the Board of Directors may be made at
such a special meeting of stockholders if the stockholder's notice as required
by paragraph (A)(2) of this Section 2.7 shall be delivered to the Secretary of
the Corporation at the principal executive offices of the Corporation not
earlier than the ninetieth (90th) day prior to such special meeting and not
later than the close of business on the later of the sixtieth (60th) day prior
to such special meeting or the tenth (10th) day following the day on which
public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(C) General. (1) Only persons who are nominated in
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accordance with the procedures set forth in this Section 2.7 shall be eligible
to serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 2.7.
(2) Except as otherwise provided by law, the Certificate of
Incorporation or this Section 2.7, the chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
8
in this Section 2.7 and, if any proposed nomination or business is not in
compliance with this Section 2.7, to declare that such defective nomination or
proposal shall be disregarded.
(3) For purposes of this Section 2.7, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(4) Notwithstanding the foregoing provisions of this
Section 2.7, 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 2.7. Nothing in this Section 2.7 shall be
deemed to affect any rights (i) of stockholders to request inclusion of
proposals in the Corporation's proxy materials with respect to a meeting of
stockholders pursuant to Rule 14a-8 under Exchange Act or (ii) of the holders of
any series of Preferred Stock or any other series or class of stock as set forth
in the Certificate of Incorporation to elect directors under specified
circumstances or to consent to specific actions taken by the Corporation.
Section 2.8 Inspectors of Elections; Opening and Closing
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the Polls.
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(A) The Board of Directors by resolution shall appoint one
or more inspectors, which inspector or inspectors may include individuals who
serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives of the Corporation, to act at the
meeting and make a written report thereof. One or more persons may be designated
as alternate inspectors to replace any inspector who fails to act. If no
9
inspector or alternate has been appointed to act, or if all inspectors or
alternates who have been appointed are unable to act, at a meeting of
stockholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of his or her
ability. The inspectors shall have the duties prescribed by the GCL.
(B) The chairman of the meeting shall fix and announce at
the meeting the time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting.
Section 2.9 List of Stockholders. The officer who has
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charge of the stock ledger of the Corporation shall prepare and make available,
at least ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote at the meeting, arranged in alphabetical
order, and showing the address 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 the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, the list required by this
Section or the books of the Corporation, or to vote in person or by proxy at any
meeting of stockholders.
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Section 2.10 No Stockholder Action by Written Consent.
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Subject to the rights of the holders of any series of Preferred Stock or any
other series or class of stock as set forth in the Certificate of Incorporation
to elect additional directors under specified circumstances or to consent to
specific actions taken by the Corporation, any action required or permitted to
be taken by the stockholders of the Corporation must be taken at an annual or
special meeting of the stockholders and may not be taken by any consent in
writing by such stockholders.
ARTICLE III
Directors
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Section 3.1 General Powers. The business and affairs of the
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Corporation shall be managed by or under the direction of its Board of
Directors. In addition to the powers and authorities by these Bylaws expressly
conferred upon it, the Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by law or by the
Certificate of Incorporation or by these Bylaws required to be exercised or done
by the stockholders.
Section 3.2 Number, Tenure and Qualifications. Subject to
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the rights of the holders of any series of Preferred Stock or any other series
or class of stock as set forth in the Certificate of Incorporation to elect
directors under specified circumstances, the number of directors shall be fixed
from time to time exclusively pursuant to a resolution adopted by a majority of
the Whole Board, but shall consist of not more than seven nor less than four
directors. The directors, other than those who may be elected by the holders of
any series of Preferred Stock or any other series or class of stock as set forth
11
in the Certificate of Incorporation, shall be divided into three classes, and
designated as Class I, Class II and Class III. Class I directors shall be
initially elected for a term expiring at the 2001 annual meeting of
stockholders, Class II directors shall be initially elected for a term expiring
at the 2002 annual meeting of stockholders and Class III directors shall be
initially elected for a term expiring at the 2003 annual meeting of
stockholders. Members of each class shall hold office until their successors
shall have been duly elected and qualified. At each succeeding annual meeting of
stockholders of the Corporation, the successors of the class of directors whose
term expires at that meeting shall be elected to hold office for a term expiring
at the annual meeting of stockholders held in the third year following the year
of their election, and until their successors are elected and qualified.
Section 3.3 Vacancies and Newly Created Directorships.
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Subject to the rights of the holders of any series of Preferred Stock or any
other series or class of stock as set forth in the Certificate of Incorporation
to elect additional directors under specified circumstances, vacancies resulting
from death, resignation, retirement, disqualification, removal from office or
other cause, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled only by the affirmative vote of a
majority of the remaining directors, though less than a quorum of the Board of
Directors, and directors so chosen shall hold office for a term expiring at the
annual meeting of stockholders at which the term of office of the class to which
they have been elected expires and until such director's successor shall have
been duly elected and qualified. No decrease in the number of authorized
12
directors constituting the Whole Board shall shorten the term of any incumbent
director.
Section 3.4 Resignation. Any director may resign at any
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time upon written notice to the Corporation. Any such resignation shall take
effect at the time specified therein or, if the time be not specified, upon
receipt thereof, and the acceptance of such resignation, unless required by the
terms thereof, shall not be necessary to make such resignation effective.
Section 3.5 Removal. Subject to the rights of the holders
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of any series of Preferred Stock or any other series or class of stock as set
forth in the Certificate of Incorporation to elect additional directors under
specified circumstances, any director may be removed from office at any time,
but only for cause and only by the affirmative vote of the holders of at least
80 percent of the voting power of the then outstanding Voting Stock, voting
together as a single class.
Section 3.6 Meetings. Meetings of the Board of Directors,
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regular or special, may be held at any place within or without the State of
Delaware. Members of the Board of Directors, or of any committee designated by
the Board of Directors, may participate in a meeting of the Board of Directors
or such committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting. An annual meeting of the Board of Directors
shall be held at the same place and immediately following each annual meeting of
stockholders, and no further notice thereof need be given other than this Bylaw.
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The Board of Directors may fix times and places for additional regular meetings
of the Board of Directors and no further notice of such meetings need be given.
A special meeting of the Board of Directors shall be held whenever called by the
Chairman of the Board or by a majority of the Whole Board, at such time and
place as shall be specified in the notice or waiver thereof. The person or
persons authorized to call special meeting of the Board of Directors may fix the
place and time of the meetings. Notice of any special meeting shall be given
to each director at his or her business or residence in writing or by telegram
or by telephone communication. If mailed, such notice shall be deemed adequately
delivered when deposited in the United States mails so addressed, with postage
thereon prepaid, at least five (5) days before such meeting. If by telegram,
such notice shall be deemed adequately delivered when the telegram is delivered
to the telegraph company at least twenty-four hours before such meeting. If by
facsimile transmission, such notice shall be transmitted at least twenty-four
hours before such meeting. If by telephone, the notice shall be given at least
twelve hours prior to the time set for the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting, except for
amendments to these Bylaws as provided under Section 10.1 of these Bylaws.
Section 3.7 Quorum and Voting. A whole number of directors
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equal to at least a majority of the Whole Board shall constitute a quorum for
the transaction of business at any meeting of the Board of Directors, but if
there be less than a quorum, a majority of the directors present may adjourn the
meeting from time to time, and no further notice thereof need be given other
14
than announcement at the meeting which shall be so adjourned. Except as
otherwise provided by law, by the Certificate of Incorporation, or by these
Bylaws, 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 of Directors.
Section 3.8 Written Consent of Directors in Lieu of a
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Meeting. Any action required or permitted to be taken at any meeting of the
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Board of Directors or of any committee thereof may be taken without a meeting if
all members of the Board of Directors or of such 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 of Directors or of such committee.
Section 3.9 Compensation. Directors may receive
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compensation for services to the Corporation in their capacities as directors or
otherwise in such manner and in such amounts as may be fixed from time to time
by the Board of Directors.
Section 3.10 Committees of the Board of Directors. The
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Board of Directors may from time to time, by resolution passed by majority of
the Whole Board, designate one or more committees, each committee to consist of
one or more directors of the Corporation. The Board of Directors 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 resolution of
the Board of Directors may, in addition or alternatively, provide that in the
absence or disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he, she or they constitute a quorum, may unanimously appoint another member of
15
the Board of Directors 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 of Directors, shall have and may exercise all the powers
and authority of the Board of Directors 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, except as otherwise provided by law.
Unless the resolution of the Board of Directors expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Any such committee may adopt rules governing
the method of calling and time and place of holding its meetings. Unless
otherwise provided by the Board of Directors, a majority of any such committee
(or the member thereof, if only one) shall constitute a quorum for the
transaction of business, and the vote of a majority of the members of such
committee present at a meeting at which a quorum is present shall be the act of
such committee. Each such committee shall keep a record of its acts and
proceedings and shall report thereon to the Board of Directors whenever
requested so to do. Any or all members of any such committee may be removed,
with or without cause, by resolution of the Board of Directors, passed by a
majority of the Whole Board.
ARTICLE IV
Officers
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Section 4.1 Elected Officers. The elected officers of the
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Corporation shall be a Chairman of the Board, a President, a Secretary and a
Treasurer, and may also include one or more Vice Presidents, one or more
Assistant Secretaries and one or more Assistant Treasurers. All officers chosen
16
by the Board of Directors shall each have such powers and duties as generally
pertain to their respective offices, subject to the specific provisions of this
Article IV, together with such other powers and duties as from time to time may
be conferred by the Board of Directors or any committee thereof. The Chairman of
the Board shall be chosen from among the directors. Any number of such offices
may be held by the same person, but no officer shall execute, acknowledge or
verify any instrument in more than one capacity. The Board of Directors may
appoint, and may delegate power to appoint, such other officers, agents and
employees as it may deem necessary or proper, who shall hold their offices or
positions for such terms, have such authority and perform such duties as may
from time to time be determined by or pursuant to authorization of the Board of
Directors.
Section 4.2 Election and Term of Office. The elected
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officers of the Corporation shall be elected annually by the Board of Directors
at the regular meeting of the Board of Directors held after each annual meeting
of the stockholders. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as convenient. Subject
to Section 4.3 of these Bylaws, each officer shall hold office until his or her
successor shall have been duly elected and shall have qualified or until his or
her death or until such officer shall resign.
Section 4.3 Resignation and Removal. Any officer may resign
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at any time upon written notice to the Corporation. Any elected officer may be
removed by a majority of the members of the Whole Board, with or without cause,
at any time. The Board of Directors may delegate such power of removal as to
officers, agents and employees not elected by the Board of Directors. Such
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removal shall be without prejudice to a person's contract rights, if any, but
the appointment of any person as an officer, agent or employee of the
Corporation shall not of itself create contract rights.
Section 4.4 Compensation and Bond. The compensation of the
----------- ---------------------
officers of the Corporation shall be fixed by the Board of Directors, but this
power may be delegated to any officer in respect of other officers under his or
her control. The Corporation may secure the fidelity of any or all of its
officers, agents or employees by bond or otherwise.
Section 4.5 Chairman of the Board. The Chairman of the
----------- ---------------------
Board shall preside at all meetings of stockholders and of the Board of
Directors. The Chairman of the Board shall be responsible for the general
management of the affairs of the Corporation, shall make reports to the Board of
Directors and the stockholders and shall perform all duties incidental to such
office which may be required by law and all such other duties as are properly
required by the Board of Directors. Except where by law the signature of the
President is required, the Chairman of the Board shall possess the same power as
the President to sign all certificates, contracts and other instruments of the
Corporation which may be authorized by the Board of Directors. The Chairman of
the Board shall see that all orders and resolutions of the Board of Directors
and of any committee thereof are carried into effect.
Section 4.6 President. The President shall act in a general
----------- ---------
executive capacity and shall assist the Chairman of the Board in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. The President shall, in the absence of
or because of the inability to act of the Chairman of the Board, perform all
18
duties of the Chairman of the Board and preside at all meetings of stockholders
and of the Board of Directors. The President may sign, alone or with the
Secretary or any other proper officer of the Corporation authorized by the Board
of Directors, certificates, contracts and other instruments of the Corporation
as authorized by the Board of Directors.
Section 4.7 Vice Presidents. Each Vice President shall have
----------- ---------------
such powers and perform such duties as the Board of Directors, the Chairman of
the Board or the President may from time to time prescribe. In the absence or
inability to act of the President, unless the Board of Directors shall otherwise
provide, the Vice President who has served in that capacity for the longest time
and who shall be present and able to act, shall perform all the duties and may
exercise any of the powers of the President.
Section 4.8 Treasurer. The Treasurer shall have charge of
----------- ---------
all funds and securities of the Corporation, shall endorse the same for deposit
or collection when necessary and deposit the same to the credit of the
Corporation in such banks or depositaries as the Board of Directors may
authorize. He or she may endorse all commercial documents requiring endorsements
for or on behalf of the Corporation and may sign all receipts and vouchers for
payments made to the Corporation. He or she shall have all such further powers
and duties as generally are incident to the position of Treasurer or as may be
assigned to him or her by the Chairman of the Board, the President or the Board
of Directors.
Section 4.9 Secretary. The Secretary shall record all the
----------- ---------
proceedings of the meetings of the stockholders and directors in a book to be
kept for that purpose and shall also record therein all action taken by written
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consent of directors in lieu of a meeting. He or she shall attend to the giving
and serving of all notices of the Corporation. He or she shall have custody of
the seal of the Corporation and shall attest the same by his or her signature
whenever required. He or she shall have charge of the stock ledger and such
other books and papers as the Board of Directors may direct, but he or she may
delegate responsibility for maintaining the stock ledger to any transfer agent
appointed by the Board of Directors. He or she shall have all such further
powers and duties as generally are incident to the position of Secretary or as
may be assigned to him or her by the President or the Board of Directors.
Section 4.10 Assistant Treasurers. In the absence or
------------ --------------------
inability to act of the Treasurer, any Assistant Treasurer may perform all the
duties and exercise all the powers of the Treasurer. An Assistant Treasurer
shall also perform such other duties as the Treasurer or the Board of Directors
may assign to him or her.
Section 4.11 Assistant Secretaries. In the absence or
------------ ---------------------
inability to act of the Secretary, any Assistant Secretary may perform all the
duties and exercise all the powers of the Secretary. An Assistant Secretary
shall also perform such other duties as the Secretary or the Board of Directors
may assign to him or her.
Section 4.12 Delegation of Duties. In case of the absence
------------ --------------------
of any officer of the Corporation, or for any other reason that the Board of
Directors may deem sufficient, the Board of Directors may confer for the time
being the powers or duties, or any of them, of such officer upon any other
officer or upon any director.
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ARTICLE V
Indemnification and Insurance
-----------------------------
Section 5.1 Right to Indemnification. Each person who was
----------- --- --------------------
or is made a party or is threatened to be made a party to or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he or she or a person of whom he or she is the legal representative is
or was a director or an officer of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of any
other corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to any employee benefit plan (hereinafter an
"indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest extent
authorized by the GCL, as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expense, liability and loss (including, without limitation, attorneys' fees,
judgments, fines, excise taxes or penalties under the Employee Retirement Income
Security Act of 1974, as amended, and amounts paid or to be paid in settlement)
reasonably incurred by such indemnitee in connection therewith; provided,
however, that except as provided in Section 5.3 with respect to proceedings
seeking to enforce rights to indemnification, the Corporation shall indemnify
any such indemnitee seeking indemnification in connection with a proceeding (or
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part thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors.
Section 5.2 Right to Advancement of Expenses. The right to
----------- --------------------------------
indemnification conferred in Section 5.1 shall include the right to be paid by
the Corporation the expenses (including attorneys' fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the GCL requires, an
advancement of expenses incurred by an indemnitee in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a
"final adjudication") that such indemnitee is not entitled to be indemnified for
such expenses under this Section 5.2 or otherwise.
Section 5.3 Right of Indemnitee to Bring Suit. If a claim
----------- ---------------------------------
under Section 5.1 or Section 5.2 is not paid in full by the Corporation within
thirty (30) days after a written claim has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the
applicable period shall be twenty (20) days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the indemnitee shall be entitled to be paid also the
expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit
brought by the indemnitee to enforce a right of an advancement of expenses) it
shall be a defense that, and (ii) in any suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
22
Corporation shall be entitled to recover such expenses upon a final adjudication
that, the indemnitee has not met any applicable standard for indemnification set
forth in the GCL. Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in the GCL, nor an actual determination
by the Corporation (including its Board of Directors, independent legal counsel
or stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indenmitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article V or otherwise shall be on the Corporation.
23
Section 5.4 Non-Exclusivity of Rights. The right to
----------- -------------------------
indemnification and the advancement of expenses conferred in this Article V
shall not be exclusive of any other right which any person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation,
provision of these Bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
Section 5.5 Insurance. The Corporation may maintain
----------- ---------
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss, whether or not
the Corporation would have the power to indemnify such person against such
expense, liability or loss under the GCL.
Section 5.6 Indemnification of Employees and Agents of the
----------- ----------------------------------------------
Corporation. The Corporation may, to the extent authorized from time to time by
- -----------
the Board of Directors, grant rights to indemnification, and rights to the
advancement of expenses, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article V with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
Section 5.7 Contract Rights. The rights to indemnification
----------- ---------------
and to the advancement of expenses conferred in Section 5.1 and Section 5.2
shall be contract rights and such rights shall continue as to an indemnitee who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the indeninitee's heirs, executors and administrators.
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ARTICLE VI
Common Stock
------------
Section 6.1 Certificates. Certificates for stock of the
----------- ------------
Corporation shall be in such form as shall be approved by the Board of Directors
and shall be signed in the name of the Corporation by the Chairman of the Board,
the President or a Vice President, and by the Treasurer or an Assistant
Treasurer, or the Secretary or an Assistant Secretary. Such certificates may be
sealed with the seal of the Corporation or a facsimile thereof. Any of or all
the signatures on a certificate may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent
or registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he or she were such officer, transfer
agent or registrar at the date of issue.
Section 6.2 Transfers of Stock. Transfers of stock shall be
----------- ------------------
made only upon the books of the Corporation by the holder, in person or by duly
authorized attorney, and on the surrender of the certificate or certificates for
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require. The
Board of Directors shall have the power to make all such rules and regulations,
not inconsistent with the Certificate of Incorporation and these Bylaws and the
GCL, as the Board of Directors may deem appropriate concerning the issue,
transfer and registration of certificates for stock of the Corporation. The
25
Board of Directors may appoint one or more transfer agents or registrars of
transfers, or both, and may require all stock certificates to bear the signature
of either or both.
Section 6.3 Lost, Stolen or Destroyed Certificates. The
----------- --------------------------------------
Corporation may issue a new stock certificate in the place of any certificate
theretofore issued by it, alleged to have been lost, stolen or destroyed, and
the Corporation may require the owner of the lost, stolen or destroyed
certificate or his or her legal representative to give the Corporation a bond
sufficient to indenmify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of any such new certificate. The Board of Directors may require such
owner to satisfy other reasonable requirements as it deems appropriate under the
circumstances.
Section 6.4 Stockholder Record Date. 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, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or
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 of Directors
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 of Directors, and
which shall not be more than sixty nor less than ten (10) days before the date
of such meeting, nor more than sixty (60) days prior to any other action.
If no record date is fixed by the Board of Directors, (1)
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 date on which notice is given, or, if notice is waived, at the
26
close of business on the day next preceding the day on which the meeting is
held, and (2) the record date for determining stockholders for any other purpose
shall be at the close of business on the day on which the Board of Directors
adopts the resolution relating thereto.
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 of Directors may fix a new
record date for the adjourned meeting.
Only such stockholders as shall be stockholders of record
on the date so fixed shall be entitled to notice of, and to vote at, such
meeting and any adjournment thereof or to receive payment of such dividend or
other distribution, or to exercise such rights in respect of any such change,
conversion or exchange of stock, or to participate in such action, as the case
may be, notwithstanding any transfer of any stock on the books of the
Corporation after any record date so fixed.
ARTICLE VII
Seal
----
Section 7.1 Seal. The seal of the Corporation shall be
----------- ----
circular in form and shall bear, in addition to any other emblem or device
approved by the Board of Directors, the name of the Corporation, the year of its
incorporation and the words "Corporate Seal" and "Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
27
ARTICLE VIII
Waiver of Notice
----------------
Section 8.1 Waiver of Notice. Whenever notice is required
----------- ----------------
to be given to any stockholder or director of the Corporation under any
provision of the GCL or the Certificate of Incorporation or these Bylaws, a
written waiver thereof, signed by the person or persons entitled to notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. In the case of a stockholder, such waiver of notice
may be signed by such stockholder's attorney or proxy duly appointed in writing.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a 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. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
stockholders, directors or members of a committee of directors need be specified
in any written waiver of notice.
ARTICLE IX
Checks, Notes, Drafts, Etc.
---------------------------
Section 9.1 Checks, Notes, Drafts, Etc. Checks, notes,
----------- --------------------------
drafts, acceptances, bills of exchange and other orders or obligations for the
payment of money shall be signed by such officer or officers or person or
persons as the Board of Directors or a duly authorized committee thereof may
from time to time designate.
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ARTICLE X
Amendments
----------
Section 10.1 Amendments. These Bylaws may be amended, added
------------ ----------
to, rescinded or repealed at any meeting of the Board of Directors or of the
stockholders, provided that notice of the proposed change was given in the
notice of the meeting and, in the case of the Board of Directors, in a notice
given no less than twenty-four hours prior to the meeting; provided, however,
that, in the case of amendments by stockholders, notwithstanding any other
provisions of these Bylaws or any provision of law which might otherwise permit
a lesser vote or no vote, but in addition to any affirmative vote of the holders
of any particular class or series of stock required by law, the Certificate of
Incorporation or these Bylaws, the affirmative vote of the holders of at least
80 percent of the voting power of the then outstanding shares of Voting Stock,
either present or represented by proxy, voting together as a single class, shall
be required to alter, amend or repeal any provision of these Bylaws.
29