1
EXHIBIT 3.2
BYLAWS
OF
PFSWEB, INC.
a Delaware corporation
2
BYLAWS
OF
PFSWEB, INC.
a Delaware corporation
PREAMBLE
These Bylaws are subject to, and governed by, the General
Corporation Law of the State of Delaware (the "Delaware Corporation Law") and
the Certificate of Incorporation of PFSweb, Inc., a Delaware corporation (the
"Corporation"), as amended, restated, modified or otherwise in effect from time
to time (the "certificate of incorporation"). In the event of a direct conflict
between the provisions of these Bylaws and the mandatory provisions of the
Delaware Corporation Law or the provisions of the certificate of incorporation
of the Corporation, such provisions of the Delaware Corporation Law or the
certificate of incorporation of the Corporation, as the case may be, will be
controlling.
ARTICLE ONE: OFFICES
1.1 Registered Office and Agent. The registered office and
registered agent of the Corporation shall be as designated from time to time by
the appropriate filing by the Corporation in the office of the Secretary of
State of the State of Delaware.
1.2 Other Offices. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the board
of directors may from time to time determine or as the business of the
Corporation may require.
ARTICLE TWO: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may be properly brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may
be called by the
-2-
3
board of directors pursuant to a resolution adopted by a majority of the
Directors then serving, by the Chairman of the Board, or by any holder or
holders of record of at least 25% of the outstanding shares of capital stock of
the Corporation then entitled to vote on any matter for which the respective
special meeting is being called (considered for this purpose as one class). A
special meeting shall be held on such date and at such time as shall be
designated by the person(s) calling the meeting and stated in the notice of the
meeting or in a duly executed waiver of notice of such meeting. Only such
business shall be transacted at a special meeting as may be stated or indicated
in the notice of such meeting given in accordance with these Bylaws or in a duly
executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual meeting of stockholders may
be held at any place within or without the State of Delaware designated by the
board of directors. A special meeting of stockholders may be held at any place
within or without the State of Delaware designated in the notice of the meeting
or a duly executed waiver notice of such meeting. Meetings of stockholders shall
be held at the principal office of the Corporation unless another place is
designated for meetings in the manner provided herein.
2.4 Notice. Written or printed notice stating the place, day,
and time of each meeting of the stockholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called shall be delivered not
less than ten nor more than 60 days before the date of the meeting, either
personally or by mail, by or at the direction of the President, the Secretary,
or the officer or person(s) calling the meeting, to each stockholder of record
entitled to vote at such meeting. If such notice is to be sent by mail, it shall
be directed to such stockholder at his address as it appears on the records of
the Corporation, unless he shall have filed with the Secretary of the
Corporation a written request that notices to him be mailed to some other
address, in which case it shall be directed to him at such other address. 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 and shall not,
at the beginning of such meeting, object to the transaction of any business
because the meeting is not lawfully called or convened, or who shall, either
before or after the meeting, submit a signed waiver of notice, in person or by
proxy.
2.5 Notice of Stockholder Business; Nomination of Director
Candidates.
(a) At annual or special meetings of the
stockholders, only such business shall be conducted as shall
have been brought before meetings (i) pursuant to the
Corporation's notice of meeting, (ii) by or at the direction
of the board of directors, or (iii) by any stockholder of the
Corporation who (1) is a stockholder of record at the time of
giving of notice provided for in this Section 2.5, (2) meets
the requirements set forth in Section 2.2 above, (3) shall be
entitled to vote at such meeting, and (4) complies with the
notice procedures set forth in this Section 2.5.
(b) Only persons who are nominated in accordance with
the procedures set forth in these Bylaws shall be eligible to
serve as directors. Nominations of persons for election to the
board of directors may be made at an annual or special meeting
of
-3-
4
stockholders (i) by or at the direction of the board of
directors, (ii) by any stockholder of the Corporation who (1)
is a stockholder of record at the time of giving of notice
provided for in this Section 2.5, (2) meets the requirements
set forth in Section 2.2 above, (3) shall be entitled to vote
at such meeting, and (4) complies with the notice procedures
set forth in this Section 2.5.
(c) A stockholder must give timely, written notice to
the Secretary of the Corporation to nominate directors at an
annual or special meeting pursuant to Section 2.5(b) hereof or
to propose business to be brought before an annual or special
meeting pursuant to clause (iii) of Section 2.5(a) hereof. To
be timely in the case of an annual meeting, a stockholder's
notice must be received at the principal executive offices of
the Corporation not less than 120 days before the first
anniversary of the preceding year's annual meeting. To be
timely in the case of a special meeting or in the event that
the date of the annual meeting is changed by more than 30 days
from such anniversary date, a stockholder's notice must be
received at the principal executive offices of the Corporation
no later than the close of business on the tenth day following
the earlier of the day on which notice of the meeting date was
mailed or public disclosure of the meeting date was made. Such
stockholder's notice shall set forth (i) with respect to each
matter, if any, that the stockholder proposes to bring before
the meeting, a brief description of the business desired to be
brought before the meeting and the reasons for conducting such
business at the meeting, (ii) with respect to each person, if
any, whom the stockholder proposes to nominate for election or
re-election as a director, all information relating to such
person (including such person's written consent to being named
in the proxy statement as a nominee and to serving as a
director) that is required under the Securities Exchange Act
of 1934, as amended , (iii) the name and address, as they
appear on the Corporation's records, of the stockholder
proposing such business or nominating such persons (as the
case may be), and the name and address of the beneficial
owner, if any, on whose behalf the proposal or nomination is
made, (iv) the class and number of shares of capital stock of
the Corporation that are owned beneficially and of record by
such stockholder of record and by the beneficial owner, if
any, on whose behalf the proposal or nomination is made, and
(v) any material interest or relationship that such
stockholder of record and/or the beneficial owner, if any, on
whose behalf the proposal or nomination is made may
respectively have in such business or with such nominee. At
the request of the board of directors, any person nominated
for election as a director shall furnish to the Secretary of
the Corporation the information required to be set forth in a
stockholder's notice of nomination which pertains to the
nominee.
(d) Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted, and no person shall
be nominated to serve as a director, at an annual or special
meeting of stockholders, except in accordance with the
procedures set forth in this Section 2.5 and elsewhere in
these Bylaws. The chairman of the meeting shall, if the facts
warrant, determine that business was not properly brought
-4-
5
before the meeting, or that a nomination was not made, in
accordance with the procedures prescribed by these Bylaws and,
if he shall so determine, he shall so declare to the meeting,
and any such business not properly brought before the meeting
shall not be transacted and any defective nomination shall be
disregarded. Notwithstanding the foregoing provisions of these
Bylaws, a stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder with respect
to the matters set forth in this Section 2.5.
2.6 Voting List. Prior to each meeting of stockholders, the
Secretary or other officer of the Corporation who has charge of the
Corporation's stock ledger, either directly or through another officer appointed
by him or through a transfer agent appointed by the board of directors, shall
prepare a complete list of stockholders entitled to vote thereat, arranged in
alphabetical order and showing the address of each stockholder and number of
shares of capital stock registered in the name of each stockholder. To the
extent required by law, such list shall be kept on file at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of meeting or a duly executed waiver of notice of such meeting or, if not
so specified, at the place where the meeting is to be held and shall be open to
examination by any stockholder during ordinary business hours. Such list shall
be produced at such meeting and kept at the meeting at all times during such
meeting and may be inspected by any stockholder who is present.
2.7 Quorum. The holders of a majority of the outstanding
shares of capital stock entitled to vote on a matter, present in person or by
proxy, shall constitute a quorum at any meeting of stockholders, except as
otherwise provided by law, the certificate of incorporation of the Corporation,
or these Bylaws. If a quorum shall not be present, in person or by proxy, at any
meeting of stockholders, the stockholders entitled to vote thereat who are
present, in person or by proxy (or, if no stockholder entitled to vote is
present, any officer of the Corporation), may adjourn the meeting from time to
time without notice other than announcement at the meeting (unless the board of
directors, after such adjournment, fixes a new record date for the adjourned
meeting), until a quorum shall be present, in person or by proxy. At any
adjourned meeting at which a quorum shall be present, in person or by proxy, any
business may be transacted which may have been transacted at the original
meeting had a quorum been present; provided that, if the adjournment is for more
than 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 adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. When a quorum is
present at any meeting, the vote of the holders of a least a majority of the
outstanding shares of capital stock entitled to vote thereat who are present, in
person or by proxy, shall decide any question brought before such meeting,
unless the question is one on which, by express provision of law, the
certificate of incorporation of the Corporation, or these Bylaws, a different
vote is required, in which case such express provision shall govern and control
the decision of such question. The stockholders present at a duly constituted
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
-5-
6
2.9 Method of Voting; Proxies. Except as otherwise provided in
the certificate of incorporation of the Corporation or by law, each outstanding
share of capital stock, regardless of class, shall be entitled to one vote on
each matter submitted to a vote at a meeting of stockholders. Elections of
directors need not be by written ballot. At any meeting of stockholders, every
stockholder having the right to vote may vote either in person or by a proxy
executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Each such proxy shall be filed with the Secretary of the
Corporation before or at the time of the meeting. No proxy shall be valid after
three years from the date of its execution, unless otherwise provided in the
proxy. If no date is stated in a proxy, such proxy shall be presumed to have
been executed on the date of the meeting at which it is to be voted. Each proxy
shall be revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an irrevocable power or
unless otherwise made irrevocable by law.
2.10 Record Date. For the purpose of determining stockholders
entitled (a) to notice of or to vote at any meeting of stockholders or any
adjournment thereof, (b) to receive payment of any dividend or other
distribution or allotment of any rights, or (c) 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, for any such determination of
stockholders, such date in any case to be not more than 60 days and not less
than ten days prior to such meeting nor more than 60 days prior to any other
action. If no record date is fixed:
(i) 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 day on which notice is given or, if notice is waived, at
the close of business on the day next preceding the day on
which the meeting is held.
(ii) 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.
(iii) 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.
2.11 Conduct of Meeting. The Chairman of the Board, if such
office has been filled, and, if not or if the Chairman of the Board is absent or
otherwise unable to act, the Chief Executive Officer, if such office has been
filled, and, if not or if the Chief Executive Officer is absent or otherwise
unable to act, the President shall preside at all meetings of stockholders. The
Secretary shall keep the records of each meeting of stockholders. In the absence
or inability to act of any such officer, such officer's duties shall be
performed by the officer given the authority to act for such absent or
non-acting officer under these Bylaws or by some person appointed by the
meeting.
-6-
7
2.12 Inspectors. The board of directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count, and tabulate all votes, ballots, or consents, determine the
results, and do such acts as are proper to conduct the election or vote with
fairness to all stockholders. On request of the chairman of the meeting, the
inspectors shall make a report in writing of any challenge, request, or matter
determined by them and shall execute a certificate of any fact found by them. No
director or candidate for the office of director shall act as an inspector of an
election of directors. Inspectors need not be stockholders.
ARTICLE THREE: DIRECTORS
3.1 Management. The business and property of the Corporation
shall be managed by the board of directors. Subject to the restrictions imposed
by law, the certificate of incorporation of the Corporation, or these Bylaws,
the board of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Term. The number of
directors constituting the board of directors shall be fixed by the board of
directors, provided that such number shall be no fewer than three and no more
than ten (plus such number of directors as may be elected from time to time
pursuant to the terms of any series of Preferred Stock that may be issued and
outstanding from time to time). The directors of the Corporation (exclusive of
directors who are elected pursuant to the terms of, and serve as representatives
of the holders of, any series of Preferred Stock) shall be referred to herein as
"Classified Directors" and shall be divided into three classes, with the first
class referred to herein as "Class I," the second class as "Class II," and the
third class as "Class III." Each class shall consist as nearly as possible of
one-third (1/3) of the total number of directors making up the entire board of
directors. The term of office of the initial Class I directors shall expire at
the 2000 annual meeting of stockholders, the term of office of the initial Class
II directors shall expire at the 2001 annual meeting of stockholders, and the
term of office of the initial Class III directors shall expire at the 2002
annual meeting of stockholders, with each director to hold office until his
successor shall have been duly elected and qualified. At each annual meeting of
stockholders, directors elected to succeed those directors whose terms then
expire shall be elected for a term of office to expire at the third succeeding
annual meeting of stockholders after their election, with each director to hold
office until his successor shall have been duly elected and qualified.
-7-
8
Notwithstanding the foregoing, whenever the holders of any one
or more classes or series of preferred stock issued by the Corporation shall
have the right, voting separately by series or by class (excluding holders of
common stock), to elect directors at an annual or special meeting of
stockholders, the election, term of office, filling of vacancies, and other
features of such directorships shall be governed by the terms of the certificate
of incorporation (including any amendment to the certificate of incorporation
that designates a series of preferred stock).
3.3 Change in Number. No decrease in the number of directors
constituting the entire board of directors shall have the effect of shortening
the term of any incumbent director.
3.4 Removal; Vacancies. Unless otherwise provided by the terms
of the certificate of incorporation (including any amendment thereto that
designates a series of preferred stock), any or all directors may be removed,
with or without cause, at any annual or special meeting of stockholders, upon
the affirmative vote of the holders of a majority of the outstanding shares of
each class of capital stock then entitled to vote in person or by proxy at an
election of such directors, provided that notice of the intention to act upon
such matter shall have been given in the notice calling such meeting. Unless
otherwise provided by the terms of the certificate of incorporation (including
any amendment thereto that designates a series of preferred stock), any
vacancies occurring in the board of directors caused by death, resignation,
retirement, disqualification, removal or other termination from office of any
directors may be filled by the vote of a majority of the board of directors then
in office, though less than a quorum, or by the affirmative vote, at any annual
meeting or any special meeting of the stockholders called for the purpose of
filling such directorship, of the holders of a majority of the outstanding
shares of each class of capital stock then entitled to vote in person or by
proxy at an election of such directors. Each successor director so chosen shall
hold office until the next election of the class for which such director shall
have been chosen and until his respective successor shall have been duly elected
and qualified.
3.5 Meetings of Directors. The directors may hold their
meetings and may have an office and keep the records of the Corporation, except
as otherwise provided by law, in such place or places within or without the
State of Delaware as the board of directors may from time to time determine or
as shall be specified in the notice of such meeting or duly executed waiver of
notice of such meeting.
3.6 First Meeting. Each newly elected board of directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of stockholders, and no notice of such meeting shall be
necessary.
3.7 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
-8-
9
3.8 Regular Meetings. Regular meetings of the board of
directors shall be held at such times and places as shall be designated from
time to time by resolution of the board of directors. Notice of such regular
meetings shall not be required.
3.9 Special Meetings. Special meetings of the board of
directors shall be held whenever called by the Chairman of the Board, the Chief
Executive Officer, the President, or any director.
3.10 Notice. The Secretary shall give notice of each special
meeting to each director at least 24 hours before the meeting. Notice of any
such meeting need not be given to any director who, either before or after the
meeting, submits a signed waiver of notice or who shall attend such meeting
without protesting, prior to or at its commencement, the lack of notice to him.
The purpose of any special meeting shall be specified in the notice or waiver of
notice of such meeting.
3.11 Quorum; Majority Vote. At all meetings of the board of
directors, a majority of the directors fixed in the manner provided in these
Bylaws shall constitute a quorum for the transaction of business. If at any
meeting of the board of directors there is less than a quorum present, a
majority of those present or any director solely present may adjourn the meeting
from time to time without further notice. Unless the act of a greater number is
required by law, the certificate of incorporation of the Corporation, or these
Bylaws, the act of a majority of the directors present at a meeting at which a
quorum is in attendance shall be the act of the board of directors. At any time
that the certificate of incorporation of the Corporation provides that directors
elected by the holders of a class or series of stock shall have more or less
than one vote per director on any matter, every reference in these Bylaws to a
majority or other proportion of directors shall refer to a majority or other
proportion of the votes of such directors.
3.12 Procedure. At meetings of the board of directors,
business shall be transacted in such order as from time to time the board of
directors may determine. The Chairman of the Board, if such office has been
filled, and, if not or if the Chairman of the Board is absent or otherwise
unable to act, the Chief Executive Officer, if such office has been filled, and,
if not or if the Chief Executive Officer is absent or otherwise unable to act,
the President shall preside at all meetings of the board of directors. In the
absence or inability to act of either such officer, a chairman shall be chosen
by the board of directors from among the directors present. The Secretary of the
Corporation shall act as the secretary of each meeting of the board of directors
unless the board of directors appoints another person to act as secretary of the
meeting. The board of directors shall keep regular minutes of its proceedings
which shall be placed in the minute book of the Corporation.
3.13 Presumption of Assent. A director of the Corporation who
is present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to
-9-
10
a director who voted in favor of such action.
3.14 Compensation. The board of directors shall have the
authority to fix the compensation, including fees and reimbursement of expenses,
paid to directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE FOUR: COMMITTEES
4.1 Designation. The board of directors may, by resolution
adopted by a majority of the entire board of directors, designate one or more
committees, including without limitation an Executive Committee, Audit Committee
and Compensation Committee as hereinafter described.
4.2 Number; Qualification; Term. Each committee shall consist
of one or more directors appointed by resolution adopted by a majority of the
entire board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until the earliest
of (i) the expiration of his term as director, (ii) his resignation as a
committee member or as a director, or (iii) his removal as a committee member or
as a director.
4.3 Authority. Each committee, to the extent expressly
provided in the resolution establishing such committee, shall have and may
exercise all of the authority of the board of directors in the management of the
business and the property of the Corporation except to the extent expressly
restricted by such resolution or by law, the certificate of incorporation of the
Corporation, or these Bylaws.
4.4 Committee Changes. The board of directors shall have the
power at any time to fill vacancies in, to change the membership of, and to
discharge any committee.
4.5 Alternate Members of Committees. The board of directors
may designate one or more directors as alternate members of any committee. Any
such alternate member may replace any absent or disqualified member at any
meeting of the committee. If no alternate committee members have been so
appointed to a committee or each such alternate committee member is absent or
disqualified, the member or members of such committee present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
4.6 Regular Meetings. Regular meetings of any committee may be
held without notice at such time and place as may be designated from time to
time by the committee and communicated to all members thereof.
-10-
11
4.7 Special Meetings. Special meetings of any committee may be
held whenever called by any committee member. The committee member calling any
special meeting shall cause notice of such special meeting, including therein
the time and place of such special meeting, to be given to each committee member
at least two days before such special meeting. Neither the business to be
transacted at, nor the purpose of, any special meeting of any committee need be
specified in the notice or waiver of notice of any special meeting.
4.8 Quorum; Majority Vote. At meetings of any committee, a
majority of the number of members designated by the board of directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting of any committee, a majority of the members present may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the members present
at any meeting at which a quorum is in attendance shall be the act of a
committee, unless the act of a greater number is required by law, the
certificate of incorporation of the Corporation, or these Bylaws.
4.9 Minutes. Each committee shall cause minutes of its
proceedings to be prepared and shall report the same to the board of directors
upon the request of the board of directors. The minutes of the proceedings of
each committee shall be delivered to the Secretary of the Corporation for
placement in the minute books of the Corporation.
4.10 Compensation. Committee members may, by resolution of the
board of directors, be allowed a fixed sum and expenses of attendance, if any,
for attending any committee meetings or a stated salary.
4.11 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
4.12 Executive Committee. The board of directors may, by
resolution, designate one or more of its members to constitute an Executive
Committee. The Executive Committee shall have and may exercise all of the
authority of the board in the management of the business and affairs of the
Corporation within the limits permitted by law, including without limitation,
the power and authority of the board: (i) to authorize the seal of the
Corporation to be affixed to all papers; (ii) to declare a dividend; (iii) to
authorize the issuance of stock; (iv) to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware Corporation Law; and (v) to the
extent authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the board, to fix any of the preference rights of
such shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of shares for,
shares of any other class or classes or any other series of the same of any
other class or classes of stock of the Corporation.
4.13 Audit Committee. The board of directors may, by
resolution, designate not less than two of the directors then in office to
constitute an Audit Committee. At least a majority of
-11-
12
such directors must be independent of management and free from any relationship
that, in the opinion of the board, would interfere with such directors' exercise
of independent judgment as a committee member. The Audit Committee, if
established, shall (i) consider and make recommendations to the board with
respect to the employment of a firm of independent public accountants, (ii)
confer with the Corporation's independent public accountants to determine the
scope of the audit that such accountants will perform, (iii) receive reports
from the independent public accountants and transmit such reports to the board,
and after the close of the fiscal year, transmit to the board the financial
statements certified by such accountants, (iv) inquire into, examine and make
comments on the accounting procedures of the Corporation and the reports of the
independent public accountants, and (v) consider and make recommendations to the
board upon matters presented to it by the officers of the Corporation pertaining
to the audit practices and procedures adhered to by the Corporation. The board
may designate one member of the Audit Committee to act as its chairman.
4.14 Compensation Committee. The board of directors may, by
resolution, designate not less than two of the directors then in office to
constitute a Compensation Committee, at least one of which shall be independent
of management so as to exercise independent judgment as a committee member. The
Compensation Committee may exercise all of the authority of the board in
administering the Corporation's executive compensation plans, including stock
option plans.
4.15 Other Committees. In addition to the Executive Committee,
the Audit Committee and the Compensation Committee, the board of directors may,
by resolution, designate one or more other committees of the board in accordance
with the provisions of these Bylaws.
ARTICLE FIVE: NOTICE
5.1 Method. Whenever by statute, the certificate of
incorporation of the Corporation, or these Bylaws, notice is required to be
given to any committee member, director, or stockholder and no provision is made
as to how such notice shall be given, personal notice shall not be required and
any such notice may be given (a) in writing, by mail, postage prepaid, addressed
to such committee member, director, or stockholder at his address as it appears
on the books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, or telefax). Any notice
required or permitted to be given by mail shall be deemed to be delivered and
given at the time when the same is deposited in the United States mail as
aforesaid. Any notice required or permitted to be given by overnight courier
service shall be deemed to be delivered and given at the time delivered to such
service with all charges prepaid and addressed as aforesaid. Any notice required
or permitted to be given by telegram, telex, or telefax shall be deemed to be
delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director, or committee member of the corporation by statute, the
certificate of incorporation of the Corporation, or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to
-12-
13
such notice, whether before or after the time stated therein, shall be
equivalent to the giving of such notice. Attendance of a stockholder, director,
or committee member at a meeting shall constitute a waiver of notice of such
meeting, except where such person attends for the express purpose of objecting
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
ARTICLE SIX: OFFICERS
6.1 Number; Titles, Term of Office. The officers of the
Corporation shall be a Chairman of the Board, a President, a Secretary, and such
other officers as the board of directors may from time to time elect or appoint,
including a Chief Executive Officer, Chief Operating Officer, Chief Financial
Officer, Chief Accounting Officer, one or more Vice Presidents (with each Vice
President to have such descriptive title, if any, as the board of directors
shall determine), Controller and a Treasurer. Each officer shall hold office
until his successor shall have been duly elected and shall have qualified, until
his death, or until he shall resign or shall have been removed in the manner
hereinafter provided. Any two or more offices may be held by the same person.
None of the officers need be a stockholder or a director of the Corporation or a
resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in its
judgment the best interest 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. Election or appointment of an officer or agent shall not of itself
create contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal, or otherwise) may be filled by the
board of directors.
6.4 Authority. Officers shall have such authority and perform
such duties in the management of the Corporation as are provided in these Bylaws
or as may be determined by resolution of the board of directors not inconsistent
with these Bylaws.
6.5 Compensation. The compensation, if any, of officers and
agents shall be fixed from time to time by the board of directors or any
committee thereof; provided, however, that the board of directors may delegate
the power to determine the compensation of any officer and agent (other than the
officer to whom such power is delegated) to any other officer of the
Corporation.
6.6 Chairman. The Chairman of the Board shall preside at all
meetings of the board of directors and shall exercise such powers and perform
such other duties as shall be determined from time to time by the board.
6.7 Chief Executive Officer. The Chief Executive Officer shall
be the chief executive officer of the Corporation and shall have general
supervision and direction over the business of the Corporation, subject,
however, to the control of the board and of any duly authorized committee
-13-
14
of directors. The Chief Executive Officer, in the absence of the Chairman, shall
preside at each meeting of the stockholders and of the board. He may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts and
other instruments, except in cases where the signing and execution thereof shall
be expressly delegated by the board or by the By-laws to some other officer or
agent of the Corporation, or shall be required by law otherwise to be signed or
executed; and, in general, shall perform all duties incident to the office of
Chief Executive Officer and such other duties as from time to time may be
assigned to him by the board or by the By-laws.
6.8 President. The President shall assist the Chief Executive
Officer in the management of and supervision and direction over the business and
affairs of the Corporation, subject, however, to the direction of the Chief
Executive Officer and the control of the board. The President may, in the
absence of the Chairman and the Chief Executive Officer, preside, if present, at
each meeting of the stockholders and of the board. The President may sign and
execute in the name of the Corporation deeds, mortgages, bonds, contracts and
other instruments except in cases in which the signing and execution thereof
shall be expressly delegated by the board or by these By-laws to some other
officer or agent of the Corporation or shall be required by statute otherwise to
be signed or executed and, in general, shall perform all duties incident to the
office of the President and such other duties as from time to time may be
assigned to him by the board, by the By-laws or by the Chief Executive Officer.
6.9 Chief Operating Officer. The Chief Operating Officer shall
be the chief operating officer of the Corporation, and shall assist the Chief
Executive Officer and the President in the active management of and supervision
and direction over the business and affairs of the Corporation, subject,
however, to the direction of the Chief Executive Officer and the President and
the control of the board. In the absence of the Chairman, the Chief Executive
Officer and the President, the Chief Operating Officer shall preside at each
meeting of the stockholders and of the board. He may, with the Secretary or the
Treasurer or an Assistant Secretary or an Assistant Treasurer, sign certificates
for shares of capital stock of the Corporation. He may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts and other
instruments, except in cases where the signing and execution thereof shall be
expressly delegated by the board or by the By-laws to some other officer or
agent of the Corporation, or shall be required by law otherwise to be signed or
executed; and, in general, shall perform all duties incident to the office of
Chief Operating Officer and such other duties as from time to time may be
assigned to him by the board, by the By-laws, by the Chief Executive Officer or
by the President.
6.10 Chief Financial Officer. The Chief Financial Officer
shall be the chief financial officer of the Corporation, and shall render to the
board, whenever the board may require, an account of the financial condition of
the Corporation; shall make, sign and file financial, tax and similar reports to
any state, federal or municipal government, agency or department, or any
self-regulatory organization; shall provide for the continuous review of all
accounts and reports; and shall perform such other duties as from time to time
may be assigned to him by the board, by the By-laws or the Chief Executive
Officer or President.
-14-
15
6.11 Vice Presidents. Each Vice President shall have such
powers and perform such duties as from time to time may be assigned to such Vice
President by the board or by the Chief Executive Officer or the President and
shall perform such other duties as may be prescribed in the By-laws.
6.12 Secretary. The Secretary shall attend all meetings of the
stockholders and shall record all the proceedings of the meetings of the board
and of the stockholders in a book to be kept for that purpose, and shall perform
like duties for committees of the board, when required. The Secretary shall
give, or cause to be given, notice of all special meetings of the board and of
the stockholders and shall perform such other duties as may be prescribed by the
board or by the Chief Executive Officer, under whose supervision the Secretary
shall be. The Secretary shall have custody of the corporate seal of the
Corporation, and the Secretary, or an Assistant Secretary, shall have authority
to impress the same on any instrument requiring it, and when so impressed the
seal may be attested by the signature of the Secretary or by the signature of
such Assistant Secretary. The board may give general authority to any other
officer to impress the seal of the Corporation and to attest the same by such
officer's signature. The Secretary or an Assistant Secretary may also attest all
instruments signed by the Chairman, the Chief Executive Officer or the
President. The Secretary shall have charge of all the books, records and papers
of the Corporation relating to its organization and management, shall see that
the reports, statements and other documents required by statute are properly
kept and filed and, in general, shall perform all duties incident to the office
of Secretary of a corporation and such other duties as may from time to time be
assigned to the Secretary by the board, by the By-laws, by the Chief Executive
Officer or by the President.
6.13 Treasurer. The Treasurer shall have charge and custody
of, and be responsible for, all funds, securities and notes of the Corporation;
receive and give receipts for moneys due and payable to the Corporation from any
sources whatsoever; deposit all such moneys and valuable effects in the name and
to the credit of the Corporation in such depositaries as may be designated by
the board; against proper vouchers, cause such funds to be disbursed by checks
or drafts on the authorized depositaries of the Corporation signed in such
manner as shall be determined by the board and be responsible for the accuracy
of the amounts of all moneys so disbursed; regularly enter or cause to be
entered in books or other records maintained for the purpose full and adequate
account of all moneys received or paid for the account of the Corporation; have
the right to require from time to time reports or statements giving such
information as the Treasurer may desire with respect to any and all financial
transactions of the Corporation from the officers or agents transacting the
same; render to the Chairman, the Chief Executive Officer, the President or the
board, whenever the Chairman, the Chief Executive Officer, the President or the
board shall require the Treasurer so to do, an account of the financial
condition of the Corporation and of all financial transactions of the
Corporation; exhibit at all reasonable times the records and books of account to
any of the Directors upon application at the office of the Corporation where
such records and books are kept; disburse the funds of the Corporation as
ordered by the board; and, in general, perform all duties incident to the office
of Treasurer of a corporation and such other duties as may from time to time be
assigned to the Treasurer by the board, by the By-laws or by the Chief Executive
Officer or by the President.
-15-
16
6.14 Assistant Secretaries and Assistant Treasurers. Assistant
Secretaries and Assistant Treasurers shall perform such duties as shall be
assigned to them by the Secretary or by the Treasurer, respectively, or by the
board, by the By-laws or by the Chief Executive Officer or by the President.
ARTICLE SEVEN: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock
of the Corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board, the
Chief Executive Officer or the President or a Vice President and also by the
Secretary or an Assistant Secretary or by the Treasurer or an Assistant
Treasurer. Any and all signatures on the certificate may be a facsimile and may
be sealed with the seal of the Corporation or a facsimile thereof. If any
officer, transfer agent, or registrar who has signed, or whose facsimile
signature has been placed upon, a certificate has ceased to be such officer,
transfer agent, or registrar before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent, or registrar at the date of issue. The certificates
shall be consecutively numbered and shall be entered in the books of the
Corporation as they are issued and shall exhibit the holder's name and the
number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board
of directors may direct a new certificate or certificates to be issued in place
of a certificate or certificates theretofore issued by the Corporation and
alleged to have been lost or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate or certificates representing shares
to be lost or destroyed. When authorizing such issue 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 and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal
representatives. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate representing shares duly endorsed or accompanied by
proper evidence of succession, assignment, or authority to transfer, the
Corporation or its transfer agent shall issue a new certificate to the person
entitled thereto, cancel the old certificate, and record the transaction upon
its books.
7.4 Registered Stockholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any
-16-
17
other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by law.
7.5 Regulations. The board of directors shall have the power
and authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer, and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear such
legends as the board of directors deems appropriate to assure that the
Corporation does not become liable for violations of federal or state securities
laws or other applicable law.
ARTICLE EIGHT: MISCELLANEOUS; PROVISIONS
8.1 Dividends. Subject to provisions of law and the
certificate of incorporation of the Corporation, dividends may be declared by
the board of directors at any regular or special meeting and may be paid in
cash, in property, or in shares of stock of the Corporation. Such declaration
and payment shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors
out of funds of the Corporation legally available therefor such reserve or
reserves as the directors from time to time, in their discretion, consider
proper to provide for contingencies, to equalize dividends, or to repair or
maintain any property of the Corporation, or for such other purpose as the board
of directors shall consider beneficial to the Corporation, and the board of
directors may modify or abolish any such reserve in the manner in which it was
created.
8.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the proceedings of
its stockholders and board of directors and shall keep at its registered office
or principal place of business, or at the office of its transfer agent or
registrar, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be
fixed by the board of directors.
8.5 Seal. The seal of the Corporation shall be such as from
time to time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer
may resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the Chief
Executive Officer, the President, or the Secretary. Such resignation shall take
effect at the time specified therein or, if no time is specified therein,
immediately upon its
-17-
18
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 Securities of Other Corporations. The Chairman of the
Board, the Chief Executive Officer, the President, or any Vice President of the
Corporation shall have the power and authority to transfer, endorse for
transfer, vote, consent, or take any other action with respect to any securities
of another issuer which may be held or owned by the Corporation and to make,
execute, and deliver any waiver, proxy, or consent with respect to any such
securities.
8.8 Telephone Meetings. Stockholders (acting for themselves or
through a proxy), members of the board of directors, and members of any
committee of the board of directors may participate in and hold a meeting of
such stockholders, board of directors, or committee by means of a conference
telephone or similar communications equipment by means of which persons
participating in the meeting can hear each other, and participation in a meeting
pursuant to this section shall constitute presence in person at such meeting,
except where a person participates in the meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
8.9 Action Without a Meeting.
(a) Except as otherwise provided in the certificate
of incorporation of the Corporation, any action required by
the Delaware Corporation Law to be taken at any annual or
special meeting of the stockholders, or any action which may
be taken at any annual or special meeting of the stockholders,
may be taken without a meeting, without prior notice, and
without a vote, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders
(acting for themselves or through a proxy) of outstanding
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 the holders of all shares entitled to vote
thereon were present and voted and shall be delivered to the
Corporation by delivery to its registered office in the State
of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Every
written consent of stockholders shall bear the date of
signature of each stockholder who signs the consent and no
written consent shall be effective to take the corporate
action referred to therein unless, within sixty days of the
earliest dated consent delivered in the manner required by
this Section 8.9(a) to the Corporation, written consents
signed by a sufficient number of holders to take action are
delivered to the Corporation by delivery to its registered
office in the State of Delaware, its principal place of
business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to the Corporation's
registered office, principal place of business, or such
officer or agent shall be by hand or by certified or
registered mail, return receipt requested.
-18-
19
(b) Except as otherwise provided in the certificate
of incorporation of the Corporation or in these Bylaws, any
action required or permitted to be taken at a meeting of the
board of directors, or of any committee of the board of
directors, may be taken without a meeting if a consent or
consents in writing, setting forth the action so taken, shall
be signed by all the directors or all the committee members,
as the case may be, entitled to vote with respect to the
subject matter thereof, and such consent shall have the same
force and effect as a vote of such directors or committee
members, as the case may be, and may be stated as such in any
certificate or document filed with the Secretary of State of
the State of Delaware or in any certificate delivered to any
person. Such consent or consents shall be filed with the
minutes of proceedings of the board or committee, as the case
may be.
8.10 Invalid Provisions. If any part of these Bylaws shall be
held invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage, or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage, or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.12 Headings. The headings used in these Bylaws have been
inserted for administrative convenience only and do not constitute matter to be
construed in interpretation.
8.13 References. Whenever herein the singular number is used,
the same shall include the plural where appropriate, and words of any gender
should include each other gender where appropriate.
8.14 Amendments. The board of directors shall have the power,
upon the affirmative vote of a majority of the Directors at a meeting lawfully
convened, to make, adopt, alter, amend, and repeal from time to time these
Bylaws and to make from time to time new Bylaws, subject to the right of the
stockholders entitled to vote thereon to adopt, alter, amend, and repeal Bylaws
made by the board of directors or to make new Bylaws; provided, however, that
the stockholders of the Corporation shall be entitled to adopt, alter, amend, or
repeal Bylaws made by the board of directors or to make new Bylaws solely upon
the affirmative vote of the holders of at least a majority of the outstanding
shares of each class of capital stock of the Corporation then entitled to vote
thereon.
-19-