Exhibit 3.2
SIMON WORLDWIDE, INC.
AMENDED AND RESTATED BY-LAWS
EFFECTIVE MARCH 27, 2006
SIMON WORLDWIDE, INC.
AMENDED AND RESTATED BY-LAWS
EFFECTIVE MARCH 27, 2006
TABLE OF CONTENTS
ARTICLE I CERTIFICATE OF INCORPORATION................................3
ARTICLE II ANNUAL MEETING..............................................3
ARTICLE III SPECIAL MEETINGS OF STOCKHOLDERS............................4
ARTICLE IV NOTICE OF STOCKHOLDERS' MEETINGS............................4
ARTICLE V QUORUM OF STOCKHOLDERS; STOCKHOLDER LIST....................4
ARTICLE VI PROXIES AND VOTING..........................................5
ARTICLE VII STOCKHOLDERS' RECORD DATE...................................6
ARTICLE VIII BOARD OF DIRECTORS..........................................6
ARTICLE IX COMMITTEES..................................................7
ARTICLE X MEETINGS OF THE BOARD OF DIRECTORS AND OF COMMITTEES........8
ARTICLE XI QUORUM OF THE BOARD OF DIRECTORS............................8
ARTICLE XII WAIVER OF NOTICE OF MEETINGS................................9
ARTICLE XIII OFFICERS AND AGENTS.........................................9
ARTICLE XIV CHAIRMAN OF THE BOARD.......................................9
ARTICLE XV SECRETARY...................................................9
ARTICLE XVI TREASURER..................................................10
ARTICLE XVII REMOVALS...................................................10
ARTICLE XVIII VACANCIES..................................................10
ARTICLE XIX CERTIFICATE OF STOCK.......................................10
ARTICLE XX LOSS OF CERTIFICATE........................................11
ARTICLE XXI SEAL.......................................................11
ARTICLE XXII EXECUTION OF PAPERS........................................11
ARTICLE XXIII FISCAL YEAR................................................12
ARTICLE XXIV AMENDMENTS.................................................12
SIMON WORLDWIDE, INC.
AMENDED AND RESTATED BY-LAWS EFFECTIVE MARCH 27, 2006
ARTICLE I
CERTIFICATE OF INCORPORATION
These by-laws, the powers of the corporation and of its directors and
stockholders, and all matters concerning the conduct and regulation of the
business of the corporation shall be subject to such provisions in regard
thereto as are set forth in the certificate of incorporation filed pursuant to
the General Corporation Law of Delaware which is hereby made a part of these
by-laws.
The term "certificate of incorporation" in these by-laws, unless the
context requires otherwise, includes not only the original certificate of
incorporation filed to create the corporation but also all other certificates,
agreements of merger or consolidation, plans of reorganization, or other
instruments, howsoever designated, filed pursuant to the General Corporation Law
of Delaware which have the effect of amending or supplementing in some respect
the corporation's original certificate of incorporation.
ARTICLE II
ANNUAL MEETING
The annual meeting of stockholders shall be held on the date fixed, from
time to time, by the directors, within or without the State of Delaware, on such
date, and at such time as shall be fixed by the board of directors and specified
in the notice of the meeting. Purposes for which an annual meeting is to be
held, in addition to those prescribed by law, by the certificate of
incorporation or by these by-laws, may be specified by the directors or the
president and shall be included in the notice of the meeting. If the board of
directors determines that, in the interest of an informed stockholder vote on
any matter, it is appropriate to adjourn the annual meeting of stockholders to a
later date in order to make available information materially relevant to
consideration of such matter, the president or other officer presiding at such
meeting may defer any action on such matter and, without a stockholder vote on
the matter of adjournment, adjourn the meeting for the purpose of considering
and acting on such matter at a session to be convened at a later date. When the
annual 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. If the adjournment is for more than
thirty 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.
ARTICLE III
SPECIAL MEETINGS OF STOCKHOLDERS
Special meetings of the stockholders may be held either within or without
the State of Delaware, at such time and place and for such purposes as shall be
specified in a call for such meeting and, subject to the rights of the holders
of any and all series of Preferred Stock, may be called only by the chairman of
the board of directors, the chief executive officer or the president of the
corporation or by the secretary within 10 days after receipt of the written
request of a majority of the directors. This Article III may only be amended by
the board of directors or by the vote of the holders of at least two-thirds of
the outstanding shares of capital stock of the corporation entitled to vote in
the election of directors.
ARTICLE IV
NOTICE OF STOCKHOLDERS' MEETINGS
Whenever stockholders are required or permitted to take any action at a
meeting, a written notice of the meeting shall be given which shall state the
place, date and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, which notice shall be given
not less than ten nor more than sixty days before the date of the meeting,
except where longer notice is required by law, to each stockholder entitled to
vote at such meeting, by leaving such notice with him or by mailing it, postage
prepaid, directed to him at his address as is appears upon the records of the
corporation. In case of the death, absence, incapacity or refusal of the
secretary, such notice may be given by a person designated either by the
secretary or by the person or persons calling the meeting or by the board of
directors. 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 the adjournment is for more than thirty 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.
An affidavit of the secretary or an assistant secretary or of the transfer
agent of the corporation that the notice has been given shall, in the absence of
fraud, be prima facie evidence of the facts stated therein.
ARTICLE V
QUORUM OF STOCKHOLDERS; STOCKHOLDER LIST
At any meeting of the stockholders, holders of a majority in interest of
all shares issued and outstanding and entitled to vote at the meeting who are
present in person or represented by proxy at the commencement of the meeting
shall constitute a quorum. Holders of a lesser interest may adjourn any meeting
from time to time, and the meeting may be held as adjourned without further
notice. The holder of shares that are voted on one or more matters by a proxy
holder who has no voting power as to one or more other matters to be voted upon
(such as
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brokers and nominees) shall be deemed present throughout the entire meeting for
purposes of establishing a quorum for the meeting and all actions taken thereat.
When a quorum is present at any meeting, the holders of a majority of the stock
present in person or represented by proxy and voting for or against a matter
shall, except where a larger vote is required by law, by the certificate of
incorporation or by these by-laws, decide any question brought before such
meeting, except that the election of directors shall be by a plurality vote.
The secretary or other officer having charge of the stock ledger shall
prepare and make, at least ten 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 days prior to the
meeting, either at a place within the city or town where the meeting is to be
held, which place shall have been specified in the notice of the meeting, or, if
not so specified, at the place where the meeting is to be held. Said 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 of stockholders required by this Article or
the books of the corporation, or the stockholders entitled to vote in person or
by proxy at any meeting of stockholders.
ARTICLE VI
PROXIES AND VOTING
Except as otherwise provided in the certificate of incorporation, each
stockholder shall at every meeting of the stockholders be entitled to one vote
for each share of the capital stock held by such stockholder. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent
to corporate action in writing without a meeting may authorize another person or
persons to act for him by proxy but (except as otherwise expressly permitted by
law) no proxy shall be voted or acted upon after three years from its date,
unless the proxy provides for a longer period or the proxy (a) states that it is
irrevocable and (b) is coupled with an interest sufficient in law to support an
irrevocable power.
Unless otherwise provided in the certificate of incorporation, any action
required by law to, or which may, be taken at any annual or special meeting of
stockholders may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders 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 all shares entitled to vote therein were present and voted.
Prompt notice of the taking of such action without a meeting by less than
unanimous written consent shall be given to those stockholders, who have not
consented in writing.
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ARTICLE VII
STOCKHOLDERS' 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 express consent to corporate action in writing without a meeting,
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, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting,
nor more than sixty days prior to any other action.
If no record date is fixed:
(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 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.
(2) The record date for determining stockholders entitled to express
consent to corporate action in writing without a meeting, when no
prior action by the board of directors is necessary, shall be the day
on which the first written consent is expressed.
(3) 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.
ARTICLE VIII
BOARD OF DIRECTORS
Except as otherwise provided by law or by the certificate of incorporation, the
business and affairs of the corporation shall be managed by the board of
directors. Subject to the rights of holders of preferred stock, nominations for
the election of directors may be made by the board of directors or a committee
appointed by the board of directors or by any stockholder entitled to vote in
the election of directors generally. However, any stockholder entitled to vote
in the election of directors generally may nominate one or more persons for
election as directors at a meeting only if written notice of such stockholder's
intent to make such nomination or nominations has been given, either by personal
delivery or by United Starts mail, postage prepaid, to the secretary of the
corporation not later than 80 days prior to the date of any annual or special
meeting. In the event that the date of such annual or special meeting was not
publicly announced by the corporation by mail, press release or otherwise more
than 90 days prior to the meeting, notice by the stockholder to be timely must
be delivered to the secretary of the
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corporation not later than the close of business on the tenth day following the
day on which such announcement of the date of the meeting was communicated to
the stockholders.
Each such notice shall set forth:
(a) the name and address of the stockholder who intends to make the
nomination and of the person or persons to be nominated;
(b) a representation that the stockholder is a holder of record of stock
of the corporation entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice;
(c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder:
(d) such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange
Commission had the nominee been nominated, or intended to be
nominated, by the board of directors; and
(e) the consent of each nominee to serve as a director of the corporation
if so elected.
The classification of the board of directors, the term of each class of
directors and the manner of election and removal of directors shall be as set
forth in the certificate of incorporation. Each director shall hold office until
his successor is elected and qualified or until his earlier resignation or
removal. Any director may resign at any time upon written notice to the
corporation. No director need be a stockholder.
ARTICLE IX
COMMITTEES
The board of directors may, by resolution passed by a majority of the whole
board, designate one or more committees, each committee to consist of one or
more of the directors of the corporation. The board 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 and may define the number
and qualifications which shall constitute a quorum of such committee. Except as
otherwise limited by law, any such committee, to the extent provided in the
resolution appointing such committee, 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. 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 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.
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ARTICLE X
MEETINGS OF THE BOARD OF DIRECTORS AND OF COMMITTEES
Regular meetings of the board of directors may be held without call or
formal notice at such places either within or without the State of Delaware and
at such times as the board may by vote from time to time determine.
Special meetings of the board of directors may be held at any place either
within or without the State of Delaware at any time when called by the
president, treasurer, secretary or two or more directors, reasonable notice of
the time and place thereof being given to each director. A waiver of such notice
in writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent to such
notice. In any case it shall be deemed sufficient notice to a director to send
notice by mail at least forty-eight hours, or to deliver personally or to send
notice by telegram at least twenty-four hours, before the meeting addressed to
him at his usual or last known business or residence address.
Unless otherwise restricted by the certificate of incorporation or by other
provisions of these by-laws,
(a) any action required or permitted to be taken at any meeting of the
board of directors or of any committee thereof may be taken without a
meeting if all members of the board or of such committee, as the case
may be, consent thereto in writing and such writing or writings are
filed with the minutes of proceedings of the board or committee; and
(b) members of the board of directors or of any committee designated by
the board may participate in a meeting thereof by means of conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and such
participation shall constitute presence in person at such meeting.
ARTICLE XI
QUORUM OF THE BOARD OF DIRECTORS
Except as otherwise expressly provided in the certificate of incorporation
or in these by-laws, a majority of the total number of directors at the time in
office shall constitute a quorum for the transaction of business, but a smaller
number of directors may adjourn any meeting from time to time. Except as
otherwise so expressly provided, the vote 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, provided, that the affirmative vote in good faith of a majority of
the disinterested directors, even though the disinterested directors shall be
fewer than a quorum, shall be sufficient to authorize a contract or transaction
in which one or more directors have interest if the material facts as to such
interest and the relation of the interested directors to the contract or
transaction have been disclosed or are known to the directors.
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ARTICLE XII
WAIVER OF NOTICE OF MEETINGS
Whenever notice is required to be given under any provision of law of the
certificate of incorporation or these by-laws, a written waiver thereof, signed
by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. 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
regular members of a committee of directors need be specified in any written
waiver of notice unless so required by the certificate of incorporation or the
by-laws.
ARTICLE XIII
OFFICERS AND AGENTS
The corporation shall have such officers and agents with such titles and
duties as the directors shall determine, each of whom shall be chosen by the
directors and shall hold his office until his successor has been chosen and
qualified or until his earlier resignation or removal. The board of directors
may secure the fidelity of any or all of such officers or agents by bond or
otherwise. Any number of offices may be held by the same person. Each officer
shall, subject to these by-laws, have such duties and powers as the board of
directors shall from time to time designate. Any officer may resign at any time
upon written notice to the corporation.
ARTICLE XIV
CHAIRMAN OF THE BOARD
The chairman of the board, if any, shall preside at all meetings of the
stockholders and at all meetings of the board of directors.
PRESIDENT
The president, if any, shall, subject to the authority of the chairman of
the board and the direction and under the supervision of the board of directors,
have general supervision over the operations of the corporation. In the absence
of the chairman of the board, and except as otherwise voted by the board, the
president shall preside at all meetings of the stockholders and of the board of
directors at which he is present.
ARTICLE XV
SECRETARY
The secretary, if any, shall record all the proceedings of the meetings of
the stockholders and directors in a book which shall be the property of the
corporation, to be kept for that purpose; and perform such other duties as shall
be assigned to him by the board of directors. In
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the absence of the secretary from any such meeting, a temporary secretary shall
be chosen, who shall record the proceedings of such meeting in the aforesaid
book.
ARTICLE XVI
TREASURER
The treasurer, if any, shall, subject to the direction and under the
supervision of the board of directors, have the care and custody of the funds
and valuable papers of the corporation, except his own bond, and he shall,
except as the board of directors shall generally or in particular cases
authorize the endorsement thereof in some other manner, have power to endorse
for deposit or collection all notes, checks, drafts and other obligations for
the payment of money to the corporation or its order. He shall keep, or cause to
be kept, accurate books of account, which shall be the property of the
corporation.
ARTICLE XVII
REMOVALS
The board of directors may, at any meeting called for the purpose, by vote
of a majority of their entire number remove from office any officer or agent of
the corporation or any member of any committee appointed by the board of
directors or by any committee appointed by the board of directors or by any
officer or agent of the corporation.
ARTICLE XVIII
VACANCIES
Any vacancy occurring in any office of the corporation by death,
resignation, removal or otherwise and newly created directorships resulting from
any increase in the authorized number of directors, may be filled by a majority
of the directors then in office (though less than a quorum) or by a sole
remaining director and each of the incumbents so chosen shall hold office for
the unexpired term in respect of which the vacancy occurred and until his
successor shall have been duly elected and qualified or for such shorter period
as shall be specified in the filling of such vacancy or, if such vacancy shall
have occurred in the office of director, until such a successor shall have been
chosen by the stockholders.
ARTICLE XIX
CERTIFICATE OF STOCK
Every holder of stock in the corporation shall be entitled to have a
certificate signed by, or in the name of the corporation by the chairman or
vice-chairman of the board of directors (if one shall be incumbent) or the
president or a vice-president and by the treasurer or an assistant treasurer, or
the secretary or an assistant secretary, certifying the number of shares owned
by him in the corporation. If such certificate is countersigned (1) by a
transfer agent other than the corporation or its employee, or (2) by a registrar
other than the corporation or its employee, any other signatures on the
certificate may be facsimiles. In case any officer who has signed or
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whose facsimile signature has been placed upon a certificate shall have ceased
to be such officer before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer at the date of
issue.
If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificates which the corporation shall issue to represent such
class or series of stock or there shall be set forth on the face or back of the
certificates which the corporation shall issue to represent such class or series
of stock, a statement that the corporation will furnish, without charge to each
stockholder who so requests, the designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Any restriction imposed upon the transfer of shares or
registration of transfer of shares shall be noted conspicuously on the
certificate representing the shares subject to such restriction.
ARTICLE XX
LOSS OF CERTIFICATE
The corporation may issue a new certificate of stock in place of any
certificate theretofore issued by it, alleged to have been lost, stolen or
destroyed, and the directors may require the owner of the lost, stolen or
destroyed certificate, or his legal representative, to give the corporation a
bond sufficient to indemnify 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 such new certificate in its place and upon such other terms or
without any such bond as the board of directors shall prescribe.
ARTICLE XXI
SEAL
The corporate seal shall, subject to alteration by the board of directors,
consist of a flat-faced circular die with the word "Delaware" together with the
name of the corporation and the year of its organization cut or engraved
thereon. The corporate seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
ARTICLE XXII
EXECUTION OF PAPERS
Except as otherwise provided in these by-laws or as the board of directors
may generally or in particular cases authorize the execution thereof in some
other manner, all deeds, leases, transfers, contracts, bonds, notes, checks,
drafts and other obligations made, accepted or endorsed by the corporation,
shall be signed by the president or by the treasurer.
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ARTICLE XXIII
FISCAL YEAR
Except as from time to time otherwise provided by the board of directors,
the fiscal year of the corporation shall begin on January 1 and end on December
31 each year.
ARTICLE XXIV
AMENDMENTS
Except as otherwise provided by law or by the certificate of incorporation,
these by-laws, as from time to time altered or amended, may be made, altered or
amended at any annual or special meeting of the stockholders called for the
purpose, of which the notice shall specify the subject matter of the proposed
alteration or amendment or new by-law or the article or articles to be affected
thereby. If the certificate of incorporation so provides, these by-laws tray
also be made, altered or amended by a majority of the whole number of directors.
Such action may be taken at any meeting of the board of directors, of which
notice shall have been given as for a meeting of stockholders.
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