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EXHIBIT 3.2
AMENDED AND RESTATED
AS OF APRIL 16, 1997
BY-LAWS
OF
FILETEK, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of FILETEK, INC.
(hereinafter called the "Corporation") shall be at 100 West Tenth Street,
Wilmington, Delaware 19801.
Section 2. Other Offices. The Corporation also may have offices at such
other place or places within or without the State of Delaware, as the Board of
Directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meeting. All meetings of the stockholders of the
Corporation shall be held at such place, within or without the State of
Delaware, as may from time to time be fixed in the respective notices or
waivers of notices thereof.
Section 2. Annual Meeting. The annual meeting of the stockholders for
the election of directors and for the transaction of such other business as may
come before the meeting shall be held at such time and place as shall be
determined by the Chief Executive Officer, President or the Board of Directors
and stated in the notice of the meeting. Written notice of an annual meeting
shall state the place, date and hour of the meeting and shall be given to each
stockholder entitled to vote at such meeting not less than ten (10) nor more
than sixty (60) days before the
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date of the meeting. Nothing in this Section 2 shall in any way limit the
stockholders from calling a Special Meeting at any time pursuant to Section 3
of this Article II.
Section 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called by the Chief Executive Officer,
President and shall be called by the Chief Executive Officer, President or
Secretary at the request in writing of a majority of the Board of Directors, or
at the request in writing of stockholders holding of record a majority in
amount of the entire capital stock of the Corporation issued and outstanding
and entitled to vote Such request shall state the purpose or purposes for
which the meeting is called and shall be given 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. Business transacted at any special meeting
of stockholders shall be limited to the purposes stated in the notice.
Section 4. Notice of Meetings. Except as otherwise provided by
statute, notice stating the place, day and hour of each meeting of the
stockholders, whether annual or special, shall be delivered not less than ten
(10) nor more than sixty (60) days before the day on which the meeting is to be
held, to each stockholder of record entitled to vote at such meeting, by
delivering a written or printed notice thereof to him personally, or by mailing
such notice in a postage pre-paid envelope addressed to him at his post-office
address furnished by him to the Secretary of the Corporation for such purpose,
or, if he shall not have furnished his post-office address to the Secretary of
the Corporation, to his address last known to the Secretary of the Corporation,
or in the absence of knowledge on the part of the Secretary of any post-office
address of such stockholder, then to the registered office of the Corporation
in the State of Delaware. In the case of a special meeting, the notice shall
state the purpose or purposes for which the meeting is called. Except where
expressly required by law, no publication of any notice of a meeting of
stockholders shall be required.
Section 5. Notice Not Required. Notice of any meeting of stockholders
shall not be required to be given to any stockholder who shall attend such
meeting in person or by proxy
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without objecting thereto, and if any stockholder shall, in person or by
attorney thereunto authorized, in writing or by telegraph, telecopier,
wireless, cable or telex, waive notice of any meeting, whether before or after
such meeting shall be held, notice thereof need not be given to him. Notice of
any adjourned meeting of the stockholders shall not be required to be given,
except when expressly required by law.
Section 6. Quorum; Presiding Officer. At each meeting of the
stockholders, the holders of a majority of each class of the issued and
outstanding stock of the Corporation entitled to vote at such meeting, present
either in person or by proxy, shall constitute a quorum for the transaction of
business of the Corporation. In the absence of a quorum, or if none of the
holders of the respective class of issued and outstanding stock of the
Corporation entitled to vote be present, any officer entitled to preside or act
as secretary at such meeting, shall have the power to adjourn the meeting, from
time to time, until the requisite number of stockholders of each class shall be
present or represented. At any such adjourned meeting at which a quorum shall
be present, any business may be transacted which might have been transacted at
the meeting as originally called. All meetings of the stockholders shall be
presided over by such officer or officers as appointed by the Board of
Directors.
Section 7. Voting. At each meeting of the stockholders, every
stockholder of record of the Corporation entitled to vote at such meeting shall
be entitled to one vote within his class or classes in person or by proxy
(executed in writing by the stockholder or by his duly authorized attorney in
fact) for each share in such class or classes of stock of the Corporation
registered in his name on the books of the Corporation on the date fixed
pursuant to Section 3 of Article VI of these By-Laws as the record date for the
determination of the stockholders entitled to vote at such meeting. Shares of
its own capital stock belonging to the Corporation shall not be voted upon
directly or indirectly. At all meetings of the stockholders, all matters
(except as otherwise provided in the Corporation's Certificate of
Incorporation, these Bylaws, any agreement between or among the Corporation's
stockholders or by statute) to be decided by the stockholders or each
respective class thereof shall be decided by a majority of the votes cast by
the holders of the stock, or each class of stock respectively, present in
person or by proxy and entitled to vote
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thereat, a quorum being present. Unless demanded by a stockholder present in
person or by proxy at any meeting and entitled to vote thereat, the vote on any
question need not be by ballot.
Section 8. Action by Consent. Whenever the vote of any class or all of
the stockholders at a meeting is required or permitted to be taken for or in
connection with any corporate action, in lieu of holding a stockholders'
meeting, such action may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing setting forth the actions
so taken, shall be signed by the holders of outstanding stock or class of stock
having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted. Such written consent may be given by any
person holding a power of attorney for any stockholder.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by the Board of Directors, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute
or by the Certificate of Incorporation or these By-Laws or any agreement
between or among the Corporation and its stockholders, directed or required to
be exercised and done by the stockholders.
Section 2. Number and Term of Office. The number of directors which
shall constitute the whole Board shall not be less than two (2) nor more than
five (5) as determined by resolution of the Board of Directors from time to
time. Directors need not be stockholders. Directors shall be elected by the
stockholders; however, except in the case where a director has been removed
from office by the stockholders as provided for in Section 10 of this Article
III, vacancies on the Board may be filled by a majority of the directors then
in office, as provided in Section 223 of the General Corporation Law of the
State of Delaware and Section 11 of this Article III. Each director shall hold
office until the annual meeting of the stockholders next following his election
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and until his successor shall have been elected and shall qualify, or until his
death, or until he shall resign, or until he shall have been removed in the
manner provided in these By-Laws.
Section 3. Quorum and Manner of Acting. Except as otherwise provided by
statute or by these By-Laws, a majority of the directors in office shall be
required to constitute a quorum for the transaction of business at any meeting,
and the act of a majority of the directors present at any meeting at which a
quorum is present shall be the act of the Board of Directors. In the absence
of a quorum, a majority of the directors present may adjourn any meeting from
time to time until a quorum shall be present. No notice other than
announcement at the meeting of any adjourned meeting need be given.
Section 4. Place of Meetings, etc. The Board of Directors may hold its
meetings, have one or more offices, and keep the books and records of the
Corporation at such place or places within or without the State of Delaware as
the Board from time to time may determine.
Section 5. First Meeting. The first meeting of each newly elected Board
of Directors shall be held at such time and place as shall be fixed by the vote
of the stockholders at the annual meeting, and no notice of such meeting shall
be necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place
and time as shall be fixed by the consent in writing of all the directors.
Section 6. Regular Meetings. Regular meetings of the Board of Directors
shall be held at such places and at such times as the Board shall from time to
time determine. If any day fixed for a regular meeting shall be a legal holiday
at the place where the meeting is to be held, then the meeting which otherwise
would be held on that day shall be held at said place at the same hour on the
next succeeding day not a legal holiday. Notice of regular meetings need not
be given.
Section 7. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chief Executive Officer,
President or a majority of the directors. Notice of each such meeting shall be
mailed to each director, addressed to him at his residence or
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usual place of business, at least three (3) days before the day on which the
meeting is to be held, or shall be sent to him at such place by telegraph,
telex or cable, or be delivered personally by telephone, not later than one day
before the day upon which the meeting is to be held. Each such notice shall
state the time and place of the meeting but need not state the purposes thereof
except as otherwise herein expressly provided. Notice of any meeting of the
Board need not be given to any director, however, if waived by him in writing
or by telegraph, cable or wireless, whether before or after such meeting shall
be held, or if he shall be present at such meeting without objecting thereto;
and any meeting of the Board shall be a legal meeting without any notice
thereof having been given, if all the directors of the Corporation then in
office shall be present thereat. All meetings of the Board of Directors shall
be presided over by the Chief Executive Officer, President, or such other
person as may be designated, from time to time, by the Board of Directors.
Section 8. Action Without Meeting. Any action required or permitted to
be taken at a meeting of the Board of Directors may be taken without a meeting
if a consent in writing setting forth the action so taken shall be signed by
all of the members of the Board and filed with the minutes of proceedings of
the Board.
Section 9. Resignation. Any director of the Corporation may resign at
any time by giving written notice to the Secretary of the Corporation. The
resignation of any director shall take effect at the time specified therein;
and, unless otherwise specified therein, acceptance of such resignation shall
not be necessary to make it effective.
Section 10. Removal of Directors. Any director may be removed, either
with or without cause, at any time, but such removal shall require the
affirmative vote of the holders of a majority of all of the shares of the class
of stock by whom he was elected, and the election of a director to fill the
unexpired portion of the term of any director so removed shall require a vote
of at least a majority of the outstanding shares of such class of stock of the
Corporation.
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Section 11. Vacancies. Except as otherwise provided by statute or by
these By-Laws, any vacancy in the Board of Directors caused by death,
resignation, disqualification, or any other cause other than removal of
stockholders, may be filled either by a majority vote of the remaining
directors, though less than a quorum, or by the stockholders of the Corporation
entitled to vote, by class or otherwise, thereon at the next annual meeting or
at any special meeting called for the purpose. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
Any directorship to be filled by reason of an increase in the number of
directors may be filled by election at an annual meeting or at a special
meeting of the class of stockholders entitled to vote thereon called for that
purpose.
Section 12. Compensation. Directors, as such, shall not receive any
stated salary for their services, but by resolution of the Board of Directors a
fixed sum and expenses of attendance, if any, may be allowed for attendance at
each regular and special meeting of the Board. Nothing herein contained shall
be construed so as to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 13. Directors' Committees. The Board of Directors may, by
resolution adopted by a majority of the directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation, which, to the extent provided in the resolution and permitted by
law, shall have and may exercise the powers 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. Such
a committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors.
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ARTICLE IV
OFFICERS
Section 1. Number. The officers of the Corporation shall be a Chief
Executive Officer, President, a Vice President, a Secretary, a Treasurer and
such other officers as may be appointed by the Board of Directors. Any number
of offices may be held by the same person.
Section 2. Election and Term of Office. The officers shall be elected
annually by the Board of Directors, and, except in the case of officers
appointed in accordance with the provisions of Section 9 of this Article, each
shall hold office until his successor shall have been duly elected and
qualified or until his death, or until he shall resign by written notice to the
Corporation, or until he shall have been removed in the manner hereinafter
provided. A vacancy in any office because of death, resignation, removal or
for any other cause shall be filled for the unexpired portion of the term in
the manner prescribed in these By-Laws for election or appointment to such
office.
Section 3. Removal. Any officer may be removed with or without cause by
the vote of a majority of the Board of Directors at a regular meeting or a
special meeting called for that purpose whenever in the judgment of the Board
of Directors the best interests of the Corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. The purpose shall be stated in a notice or waiver of notice
of such meeting unless all the directors of the Corporation shall be present
thereat.
Section 4. Chief Executive Officer. The Chief Executive Officer shall
plan, develop, and establish policies and objectives of the Corporation in
accordance with board directives and corporation charter. He shall plan
business objectives and develop organizational policies to coordinate functions
and operations between departments. He shall establish responsibilities and
procedures for attaining objectives and review activity reports and financial
statements to determine progress in attaining objectives. He shall preside at
all meetings of the Board of
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Directors and at all meetings of the stockholders. He shall execute bonds,
mortgages, leases, contracts, share certificates, and other documents requiring
the seal of the Corporation except where required or permitted by law to be
otherwise signed and executed and except where the signing and execution
thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
Section 5. President. The President shall have direct charge of the
management of the business operations of the Corporation, subject to general
control of the Chief Executive Officer and the Board of Directors, and in the
absence of the Chief Executive Officer, shall preside at all meetings of the
Board of Directors and at all meetings of the stockholders except as otherwise
provided by these By-Laws. He shall execute bonds, mortgages, leases,
contracts, share certificates, and other documents requiring the seal of the
Corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the Corporation.
Section 6. Vice President. The Vice President shall, in the absence or
disability of the President, perform the duties and exercise the powers of the
President. He shall also perform whatever duties and have whatever power the
Board of Directors from time to time may assign to him.
Section 7. Secretary. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Board of Directors and the stockholders in a
book to be kept for that purpose. He shall give, or cause to be given, notice
of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors, Chief Executive Officer, or President, under whose
supervision he shall be. He shall have custody of the corporate seal of the
Corporation and he shall have authority to affix the same to any instrument
requiring it and, when so affixed, it may be attested by his signature. The
Board of
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Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature.
Section 8. Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties, in such
sum and with such surety or sureties as the Board of Directors shall determine.
The Treasurer shall keep and disburse the monies of the Corporation, as
directed by the Board of Directors; shall keep correct books of account; shall
render to the Chief Executive Officer, President and to the Board of Directors
at the regular meetings thereof, or whenever requested by them, reports of
financial transactions by him and of the financial condition of the
Corporation; and, in general, shall perform all duties incident to the office
of Treasurer.
Section 9. Other Officers. The Corporation may have such other officers
and agents as may be deemed necessary by the Board of Directors, who shall be
appointed in such manner, have such duties, and hold their offices for such
terms as may be determined by resolution of the Board of Directors.
Section 10. Salaries. The salaries of the officers shall be fixed from
time to time by the Board of Directors, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of the
Corporation.
ARTICLE V
CONTRACTS AND ACCOUNTS
Section 1. Contracts, Checks, Notes, Bank Accounts, etc. All contracts
and agreements authorized by the Board of Directors, and all checks, drafts,
notes, bonds, bills of exchange and orders for the payment of money, shall be
signed by the Chief Executive, the President, the Treasurer or such officer or
officers or employee or employees as the Board of Directors may from time to
time designate. The Chief Executive Officer, President, or any other officer,
agent, or employee so authorized by the Board of Directors, may enter into any
contract or execute and
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deliver any contract or other instrument in the name and on behalf of the
Corporation, and such authority may be general or confined to specific
instances. Unless authorized so to do by these By-Laws or by the Board of
Directors, no officer, agent or employee shall have any power or authority to
bind the Corporation by any contract or engagement, or to pledge its credit, or
to render it liable pecuniarily for any purpose or in any amount.
Section 2. Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
as the Board of Directors, the Chief Executive Officer, the President or the
Treasurer shall direct, in such banks, trust companies or other depositories as
the Board of Directors may select or as may be selected by any officer or
officers or agent or agents of the Corporation to whom power in that respect
shall have been delegated by the Board of Directors. For the purpose of
deposit, and for the purpose of collection for the account of the Corporation,
checks, drafts and other orders for the payment of money that are payable to
the order of the Corporation may be endorsed, assigned and delivered by any
officer or agent of the Corporation.
Section 3. General and Special Bank Accounts. The Board of Directors
may from time to time authorize the opening and keeping of general and special
bank accounts with such banks, trust companies or other depositories as the
Board of Directors may select, or as may be selected by any officer or
officers, agent or agents of the Corporation to whom power in that respect
shall have been delegated by the Board of Directors. The Board of Directors
may make such special rules and regulations with respect to such bank accounts,
not inconsistent with the provisions of these By-Laws, as it may deem
expedient.
ARTICLE VI
CAPITAL STOCK
Section 1. Certificates of Stock. Every stockholder shall be entitled
to have a certificate signed by, or in the name of the Corporation by (i) the
Chief Executive Officer or the President and (ii) the Secretary or the
Assistant Secretary of the Corporation, certifying the number of
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shares of stock of the Corporation owned by him. The certificate shall be
sealed with the seal of the Corporation, or a facsimile thereof. No
certificate shall be issued for any share until such share is fully paid. Each
certificate representing shares shall state that the Corporation is organized
under the laws of the State of Delaware, the name of the person to whom issued,
the par value of each share represented by such certificate or a statement that
the shares are without par value, the class and type of shares represented by
such certificate, and shall contain such legend or legends restricting the
transfer or otherwise as the Corporation shall deem appropriate. Until such
time as the Corporation registers its stock under the Securities Act of 1933,
as amended, each stock certificate issued by or on behalf of the Corporation
shall have written, stamped, printed, or otherwise affixed on the face or back
thereof a legend, stating in substance:
The shares represented by this Certificate have not been registered under
the Securities Act of 1933, as amended, and may be offered and sold only
if registered pursuant to the provisions of that Act or if any exemption
from registration is available. The shares represented by this
Certificate may not be transferred unless the holder hereof shall have
complied with all provisions of the Certificate of Incorporation and any
applicable agreement with the Corporation and/or stockholders of the
Corporation affecting the sale thereof.
Section 2. Transfers of Capital Stock. Stock certificates shall be
transferable on the stock books of the Corporation in person or by attorney,
but, except as hereinafter provided in the case of loss, destruction or
mutilation of certificates, no transfer of stock shall be entered until the
previous certificate, if any, given for the same shall have been surrendered
and canceled. No transfer of shares of the capital stock of the Corporation
shall be effective until such transfer is recorded on the stock transfer books
of the Corporation. Until a transfer of shares of the capital stock of the
Corporation is recorded on the stock transfer books of the Corporation, the
record owner of such shares shall have the sole and exclusive right to vote
such shares upon all matters regarding which such shares are entitled to vote,
in accordance with the provisions of Article II.
Section 3. Closing of Transfer Books. For the purpose of determining
stockholders entitled to notice of or to vote at any meeting of stockholders,
or stockholders entitled to receive payment of a dividend, or in order to make
a determination of stockholders for any proper purpose, the
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Board of Directors may provide that the stock transfer books shall be closed
for a stated period but not to exceed, in any case, sixty (60) days. If the
stock transfer books shall be closed for the purpose of determining
stockholders entitled to notice of or to vote at a meeting of stockholders,
such books shall be closed for at least ten (10) days immediately preceding
such meeting. In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any determination of
stockholders, such date in any case to be not more than sixty (60) days, and in
case of a meeting of stockholders not less than ten (10) days prior to the date
upon which the particular action requiring such determination of stockholders
is to be taken. If no record date is fixed for the determination of
stockholders, the date next preceding the date on which notice of the meeting
is mailed or the date on which the resolution of the Board of Directors
declaring such dividends is adopted, as the case may be, shall be the record
date for such determination of stockholders.
Section 4. Lost, Destroyed or Mutilated Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates heretofore issued by the Corporation alleged to
have been lost, destroyed or mutilated upon the making of an affidavit of that
fact by the person claiming the certificates for shares to be lost or
destroyed. When authorizing such issuance of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require, or to give the Corporation a bond in such
sums as it may direct, as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost or
destroyed.
ARTICLE VII
DIVIDENDS
Section 1. Payment of Dividends. The Board of Directors may declare and
the Corporation may pay dividends on its outstanding shares in cash, property,
or its shares pursuant to law and subject to the provisions of its Certificate
of Incorporation and By-Laws.
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Section 2. Reserves. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the Board of Directors from time to time, in their absolute discretion,
deem proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for preparing or maintaining any property of the Corporation, or
for such other purpose as the Board of Directors shall deem conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish
any such reserve in the manner in which it was created.
ARTICLE VIII
SEAL
The Board of Directors shall provide a corporate seal, which shall be in
form of a circle and shall have inscribed thereon the name of the Corporation,
the years of its organization, and the state of its incorporation. The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
ARTICLE IX
FISCAL YEAR
The fiscal year of the Corporation shall be as determined by the Board of
Directors.
ARTICLE X
INDEMNIFICATION
Section 1. Directors and Officers. The Corporation shall indemnify its
directors and officers to the fullest extent permitted by the Certificate of
Incorporation and the Delaware General Corporation Law, as the same exists or
may hereafter be amended.
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ARTICLE XI
AMENDMENTS
These By-Laws, or any of them, may be altered, amended or repealed, or new
By-Laws may be made, at any meeting of the Board of Directors, by vote of a
majority of the Board of Directors, provided, however, that the proposed action
in respect thereof shall be stated in the notice of waiver of notice of such
meeting or that all of the directors of the Corporation shall be present at
such meeting; and provided further, that the power of the Board of Directors
to make, alter, amend or repeal the By-Laws shall be subject to the reserved
power of the stockholders to make, alter, amend or repeal the By-Laws.
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