Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
MARINEMAX, INC.
ADOPTED AS OF NOVEMBER 13, 2001
AMENDED AND RESTATED
BYLAWS
OF
MARINEMAX, INC.
ARTICLE I
STOCKHOLDERS
Section 1.1 Place of Meetings. Meetings of stockholders shall be held
at the place, either within or without the State of Delaware, as may be
designated by resolution of the Board of Directors from time to time.
Section 1.2 Annual Meetings. If required by applicable law, an annual
meeting of the stockholders shall be held for the election of directors at such
date, time and place, either with or without the State of Delaware, as may be
designated by resolution of the Board of Directors from time to time. Any other
proper business may be transacted at the annual meeting.
Section 1.3 Special Meetings. Except as otherwise provided for or fixed
pursuant to the Certificate of Incorporation relating to the rights of the
holders of any series of preferred stock of the corporation, special meetings of
stockholders may be called only by the Chairman of the Board of Directors, or by
the Board of Directors pursuant to a resolution adopted by the Board of
Directors, and may not be called by any other person or persons or in any other
manner.
Section 1.4 Notice of 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. Unless otherwise provided by law, the Certificate of Incorporation or
these Bylaws, the written notice of any meeting shall be given no less than ten
(10) nor more than sixty (60) days before the date of the meeting to each
stockholder entitled to vote at such meeting. If mailed, such notice shall be
deemed to be given when deposited in the mail, postage prepaid, directed to the
stockholder at his or her address as it appears on the records of the
corporation.
Section 1.5 Adjournments. Any meeting of stockholders, annual or
special, may adjourn from time to time to reconvene at the same or some other
place, and notice need not be given of any such 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 (30) days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
Section 1.6 Quorum. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, at each meeting of stockholders
the presence in person or by proxy of the holders of shares of stock having a
majority of the votes which could be cast by the holders of all outstanding
shares of stock entitled to vote at the meeting shall be necessary and
sufficient to constitute a quorum. In the absence of a quorum, the stockholders
so present may, by majority vote, adjourn the meeting from time to time in the
manner provided in Section 1.5 of these Bylaws until a quorum shall attend.
Shares of its own stock belonging to the corporation or to another corporation,
if a majority of the shares entitled to vote in the election of directors of
such other corporation is held, directly or indirectly, by the corporation,
shall neither be entitled to vote nor be counted for quorum purposes; provided,
however, that the foregoing shall not limit the right of the corporation to vote
stock, including but not limited to its own stock, held by it in a fiduciary
capacity.
Section 1.7 Organization. Meetings of stockholders shall be presided
over by the Chairman of the Board, if any, or in his or her absence by the Vice
Chairman of the Board, if any, or in his or her absence by the President, or in
his or her absence by a Vice President, or in the absence of the foregoing
persons by a chairman designated by the Board of Directors, or in the absence of
such designation by a chairman chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairman of the meeting
may appoint any person to act as secretary of the meeting. The date and time of
the opening and the closing of the polls for each matter upon which the
stockholders will vote at a meeting shall be announced at the meeting by the
person presiding over the meeting. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the person
presiding over any meeting of stockholders shall have the right and authority to
convene and to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such chairman, are
appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board of Directors or prescribed by the
presiding officer of the meeting, may include, without limitation, the
following: (i) the establishment of an agenda or order of business for the
meeting; (ii) rules and procedures for maintaining order at the meeting and the
safety of those present; (iii) limitations on attendance at or participation in
the meeting to stockholders of record of the corporation, their duly authorized
and constituted proxies or such other persons as the chairman of the meeting
shall determine; (iv) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (v) limitations on the time allotted to
questions or comments by participants. The presiding officer at any meeting of
stockholders, in addition to making any other determinations that may be
appropriate to the conduct of the meeting, shall, if the facts warrant,
determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding officer should so determine,
such person shall so declare to the meeting and any such matter or business not
properly brought before the meeting shall not be transacted or considered.
Unless and to the extent determined by the Board of Directors or the person
presiding over the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
Section 1.8 Voting; Proxies. Except as otherwise provided by the
Certificate of Incorporation, each stockholder entitled to vote at any meeting
of stockholders shall be entitled to one vote for each share of stock held by
him which has voting power upon the matter in
question. Each stockholder entitled to vote at a meeting of stockholders may
authorize another person or persons to act for him by proxy, but no such proxy
shall be voted or acted upon after three (3) years from its date, unless the
proxy provides for a longer period. A duly executed proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled
with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or another duly executed proxy bearing a later date with the Secretary of
the corporation. Voting at meetings of stockholders need not be by written
ballot and need not be conducted by inspectors of election unless so determined
by the holders of shares of stock having a majority of the votes which could be
cast by the holders of all outstanding shares of stock entitled to vote thereon
which are present in person or by proxy at such meeting. At all meetings of
stockholders for the election of directors a plurality of the votes cast shall
be sufficient to elect. All other elections and questions shall, unless
otherwise provided by law, the Certificate of Incorporation or these Bylaws, be
decided by the vote of the holders of shares of stock having a majority of the
votes which could be cast by the holders of all shares of stock entitled to vote
thereon which are present in person or represented by proxy at the meeting.
Section 1.9 Filing Date for Determination of Stockholders of Record. 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 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 a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors and which record date: (1) in the case of determination of
stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60)
nor less than ten (10) days before the date of such meeting; (2) in the case of
determination of stockholders entitled to express consent to corporate action in
writing without a meeting, shall not be more than ten (10) days from the date
upon which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty
(60) days prior to such 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 of the Board of
Directors is required by law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the corporation in accordance with applicable law, or, if prior action by the
Board of Directors is required by law, shall be at the close of business on the
day on which the Board of Directors adopts the resolution taking such prior
action; and (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.
Section 1.10 List of Stockholders Entitled to Vote. The Secretary shall
prepare and make, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting, as
required by applicable law. Upon the willful neglect or refusal of the directors
to produce such list at any meeting for the election of directors held at a
place, or to open such a list to examination on a reasonably accessible
electronic network during any meeting for the election of directors held solely
by means of remote communication, they shall be ineligible for election to any
office at such meeting. The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the stock ledger, the list of
stockholders or the books of the corporation, or to vote in person or by proxy
at any meeting of stockholders.
Section 1.11 Action by Consent of Stockholders. Unless otherwise
restricted by the Certificate of Incorporation, any action required or permitted
to 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 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 thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those stockholders who have not consented in writing.
Section 1.12 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations
of persons for election to the Board of Directors of the
corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of
stockholders only (a) pursuant to the corporation's notice of
meeting (or any supplement thereto), (b) by or at the
direction of the Board of Directors or (c) by any stockholder
of the corporation who was a stockholder of record of the
corporation at the time the notice provided for in this
Section 1.12 is delivered to the Secretary of the corporation,
who is entitled to vote at the meeting and who complies with
the notice procedures set forth in this Section 1.12.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause
(c) of paragraph (A)(1) of this Section 1.12, the stockholder
must have given timely notice thereof in writing to the
Secretary of the corporation and any such proposed business
other than the nominations of persons for election to the
Board of Directors must constitute a proper matter for
stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive
offices of the corporation not later than the close of
business on the ninetieth (90th) day nor earlier than the
close of business on the one hundred twentieth (120th) day
prior to the first anniversary of the preceding year's annual
meeting (provided, however, that in the event that the date of
the annual meeting is more than thirty (30) days before or
more than seventy (70) days after such anniversary date,
notice by the stockholder must be so delivered not earlier
than the close of business on the one hundred twentieth
(120th) day prior to such annual meeting and not later than
the close of business on the later of the ninetieth (90th) day
prior to such annual meeting or the tenth (10th) day following
the day on which public announcement of the date of such
meeting is first made by the corporation). In no event shall
the public announcement of an adjournment or postponement of
an annual meeting commence a new time period (or extend any
time period) for the giving of a stockholder's notice as
described above. Such stockholder's notice shall set forth:
(a) as to each person whom the stockholder proposes to
nominate for election as a director (i) all information
relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an
election contest, or is otherwise required, in each case
pursuant to and in accordance with Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act") and (ii) such person's written consent to being named in
the proxy statement as a nominee and to serving as a director
if elected; (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of
the business desired to be brought before the meeting, the
text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event that
such business includes a proposal to amend the Bylaws of the
corporation, the language of the proposed amendment), the
reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or
proposal is made (i) the name and address of such stockholder,
as they appear on the corporation's books, and of such
beneficial owner, (ii) the class and number of shares of
capital stock of the corporation which are owned beneficially
and of record by such stockholder and such beneficial owner,
(iii) 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 propose such business or nomination, and (iv) a
representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends (x)
to deliver a proxy statement and/or form of proxy to holders
of at least the percentage of the corporation's
outstanding capital stock required to approve or adopt the
proposal or elect the nominee and/or (y) otherwise to solicit
proxies from stockholders in support of such proposal or
nomination. The foregoing notice requirements shall be deemed
satisfied by a stockholder if the stockholder has notified the
corporation of his or her intention to present a proposal at
an annual meeting in compliance with Rule 14a-8 (or any
successor thereof) promulgated under the Exchange Act and such
stockholder's proposal has been included in a proxy statement
that has been prepared by the corporation to solicit proxies
for such annual meeting. The corporation may require any
proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 1.12 to the contrary, in the
event that the number of directors to be elected to the Board
of Directors of the corporation at an annual meeting is
increased and there is no public announcement by the
corporation naming the nominees for the additional
directorships at least one hundred (100) days prior to the
first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this Section 1.12 shall also
be considered timely, but only with respect to nominees for
the additional directorships, if it shall be delivered to the
Secretary at the principal executive offices of the
corporation not later than the close of business on the tenth
(10th) day following the day on which such public announcement
is first made by the corporation.
(B) Special Meetings of Stockholders. Only such
business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting
pursuant to the corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to
be elected pursuant to the corporation's notice of meeting (1)
by or at the direction of the Board of Directors or (2)
provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder
of the corporation who is a stockholder of record at the time
the notice provided for in this Section 1.12 is delivered to
the Secretary of the corporation, who is entitled to vote at
the meeting and upon such election and who complies with the
notice procedures set forth in this Section 1.12. In the event
the corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of
Directors, any such stockholder entitled to vote in such
election of directors may nominate a person or persons (as the
case may be)
for election to such position(s) as specified in the
corporation's notice of meeting, if the stockholder's notice
required by paragraph (A)(2) of this Section 1.12 shall be
delivered to the Secretary at the principal executive offices
of the corporation not earlier than the close of business on
the one hundred twentieth (120th) day prior to such special
meeting and not later than the close of business on the later
of the ninetieth (90th) day prior to such special meeting or
the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be
elected at such meeting. In no event shall the public
announcement of an adjournment or postponement of a special
meeting commence a new time period (or extend any time period)
for the giving of a stockholder's notice as described above.
(C) General. (1) Only such persons who are nominated
in accordance with the procedures set forth in this Section
1.12 shall be eligible to be elected at an annual or special
meeting of stockholders of the corporation to serve as
directors and only such business shall be conducted at a
meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this
Section 1.12. Except as otherwise provided by law, the
chairman of the meeting shall have the power and duty (a) to
determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case
may be, in accordance with the procedures set forth in this
Section 1.12 (including whether the stockholder or beneficial
owner, if any, on whose behalf the nomination or proposal is
made solicited (or is part of a group which solicited) or did
not so solicit, as the case may be, proxies in support of such
stockholder's nominee or proposal in compliance with such
stockholder's representation as required by clause
(A)(2)(c)(iv) of this Section 1.12) and (b) if any proposed
nomination or business was not made or proposed in compliance
with this Section 1.12, to declare that such nomination shall
be disregarded or that such proposed business shall not be
transacted. Notwithstanding the foregoing provisions of this
Section 1.12, if the stockholder (or a qualified
representative of the stockholder) does not appear at the
annual or special meeting of stockholders of the corporation
to present a nomination or business, such nomination shall be
disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such
vote may have been received by the corporation.
(2) For purposes of this Section 1.12, "public announcement"
shall include disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable
national
news service or in a document publicly filed by the
corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
1.12, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this
Section 1.12. Nothing in this Section 1.12 shall be deemed to
affect any rights (a) of stockholders to request inclusion of
proposals in the corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act or (b) of the holders of any
series of preferred stock to elect directors pursuant to any
applicable provisions of the Certificate of Incorporation.
Section 1.13 Inspectors of Election. The corporation may, and shall if
required by law, in advance of any meeting of stockholders, appoint one or more
inspectors of election, who may be employees of the corporation, to act at the
meeting or any adjournment thereof and to make a written report thereof. The
corporation may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the person presiding at
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath to execute faithfully the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspector or
inspectors so appointed or designated shall (i) ascertain the number of shares
of capital stock of the corporation outstanding and the voting power of each
such share, (ii) determine the shares of capital stock of the corporation
represented at the meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares of
capital stock of the corporation represented at the meeting and such inspectors'
count of all votes and ballots. Such certification and report shall specify such
other information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of stockholders of the
corporation, the inspectors may consider such information as is permitted by
applicable law. No person who is a candidate for an office at an election may
serve as an inspector at such election.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 Number; Qualifications. The Board of Directors shall
consist of not less than one (1) nor more than fifteen (15) members, the number
thereof to be determined from time to time by resolution of the Board of
Directors. The number of directors which shall comprise the initial Board of
Directors shall be that number set forth in the Certificate of Incorporation.
Directors need not be stockholders.
Section 2.2 Election; Resignation; Removal; Vacancies. Other than those
directors elected by the holders of any series of preferred stock of the
corporation provided for or fixed pursuant to the Certificate of Incorporation,
the Board of Directors shall be divided into three classes, as nearly equal in
number as possible, designated as Class I, Class II and Class III. Class I
directors shall initially serve until the 1999 meeting of stockholders; Class II
directors shall initially serve until the 2000 meeting of stockholders; and
Class III directors shall initially serve until the 2001 meeting of
stockholders. Commencing with the annual meeting of stockholders in 1999,
directors of each class, the term of which shall then expire, shall be elected
to hold office for a three-year term and until the election and qualification of
their respective successors in office. In case of any increase or decrease, form
time to time, in the number of directors (other than those directors elected by
the holders of any series of preferred stock of the corporation provided for or
fixed pursuant to the Certificate of Incorporation), the number of directors in
each class shall be apportioned as nearly equal as possible. Any director chosen
to fill a vacancy or newly created directorship shall hold office until the next
election of the class for which such director shall have been chosen and until
his or her successor shall be elected and qualified or until their earlier
death, resignation, disqualification or removal. Any director may resign at any
time upon written notice to the corporation. Unless otherwise restricted by the
Certificate of Incorporation and except as otherwise provided for or fixed
pursuant to the Certificate of Incorporation relating to the rights of the
holders of any series of preferred stock of the Corporation, any newly created
directorships resulting from any increase in the authorized number of directors,
and any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause, may be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum, and each director so elected shall hold office until the
expiration of the term of office of the director whom he has replaced or until
his or her successor is elected and qualified.
Section 2.3 Regular Meetings. Regular meetings of the Board of
Directors may be held at such places within or without the State of Delaware and
at such times as the Board of Directors may from time to time determine, and if
so determined, notices thereof need not be given.
Section 2.4 Special Meetings. Special meetings of the Board of
Directors may be held at any time or place within or without the State of
Delaware whenever called by the President, any Vice President, the Secretary, or
by any member of the Board of Directors. Notice of a special meeting of the
Board of Directors shall be given by the person or persons calling the meeting
at least twenty-four (24) hours before the special meeting.
Section 2.5 Telephonic Meetings Permitted. Members of the Board of
Directors, or any committee designated by the Board of Directors, 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 participation in a meeting pursuant to this
bylaw shall constitute presence in person at such meeting.
Section 2.6 Quorum; Vote Required for Action. At all meetings of the
Board of Directors a majority of the whole Board of Directors shall constitute a
quorum for the transaction of business. Except in cases in which the Certificate
of Incorporation or these Bylaws otherwise
provide, the vote of a majority of the directors present at a meeting at which a
quorum is present shall be the act of the Board of Directors.
Section 2.7 Organization. Meetings of the Board of Directors shall be
presided over by the Chairman of the Board, if any, or in his or her absence by
the Vice Chairman of the Board, if any, or in his or her absence by the
President, or in their absence by a chairman chosen at the meeting. The
Secretary shall act as secretary of the meeting, but in his or her absence the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
Section 2.8 Informal Action by Directors. Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, 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 of
Directors or such committee, as the case may be, consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings of the Board
of Directors or such committee.
ARTICLE III
COMMITTEES
Section 3.1 Committees. The Board of Directors may designate one or
more committees, each committee to consist of one or more of the directors of
the corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. In the absence or disqualification of a
member of the 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 place of any such absent or disqualified member. Any such committee,
to the extent permitted by law and to the extent provided in the resolution of
the Board of Directors, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the
corporation, and may authorize the seal of the corporation to be affixed to all
pages which may require it.
Section 3.2 Committee Rules. Unless the Board of Directors otherwise
provides, each committee designated by the Board of Directors may make, alter
and repeal rules for the conduct of its business. In the absence of such rules
each committee shall conduct its business in the same manner as the Board of
Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
OFFICERS
Section 4.1 Executive Officers; Election; Qualifications; Term of
Office; Resignation; Removal; Vacancies. The Board of Directors shall elect a
President and Secretary, and it may, if it so determines, choose a Chairman of
the Board and a Vice Chairman of the Board from among its members. The Board of
Directors may also elect one or more Vice Presidents, one or more
Assistant Secretaries, a Treasurer, one or more Assistant Treasurers, and such
other officers as the Board of Directors deems necessary. Each such officer
shall hold office until the first meeting of the Board of Directors after the
annual meeting of stockholders next succeeding his or her election, and until
his or her successor is elected and qualified or until his or her earlier
resignation or removal. Any officer may resign at any time upon written notice
to the corporation. The Board of Directors may remove any officer with or
without cause at any time, but such removal shall be without prejudice to the
contractual rights of such officer, if any, with the corporation. Any number of
offices may be held by the same person. Any vacancy occurring in any office of
the corporation by death, resignation, removal or otherwise may be filled for
the unexpired portion of the term by the Board of Directors at any regular or
special meeting.
Section 4.2 Powers and Duties of Executive Officers. The officers of
the corporation shall have such powers and duties in the management of the
corporation as may be prescribed by the Board of Directors and, to the extent
not so provided, as generally pertain to their respective officers, subject to
the control of the Board of Directors. The Board of Directors may require any
officer, agent or employee to give security for the faithful performance of his
or her duties.
ARTICLE V
STOCK
Section 5.1 Certificates. Every holder of stock 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 any, or the President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary or
an Assistant Secretary, of the corporation, certifying the number of shares
owned by him in the corporation. Any of or all the signatures on the certificate
may be a facsimile. In case any officer, transfer agent, or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent, or registrar before such
certificate is issued, it may be issued by the corporation with the same effect
as if he were such officer, transfer agent, or registrar at the date of issue.
Section 5.2 Lost, Stolen or Destroyed Stock Certificates; Issuance of
New Certificates. The corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been lost,
stolen or destroyed, and the corporation may require the owner of the lost,
stolen or destroyed certificate, or his or her legal representative, to give the
corporation a bond sufficient to 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.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Right to Indemnification. The corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, any person who was or is made or
is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding"), by reason of the fact that he
or she or a person for whom he or she is the legal representative, is or was a
director or officer of the corporation or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust, enterprise or nonprofit entity,
including service with respect to employee benefit plans (an "indemnitee"),
against all liability and loss suffered and expenses (including attorneys' fees)
reasonably incurred by such indemnitee. The corporation shall be required to
indemnify an indemnitee in connection with a proceeding (or part thereof)
initiated by such indemnitee only if the initiation of such proceeding (or part
thereof) by the indemnitee was authorized by the Board of Directors of the
corporation.
Section 6.2 Prepayment of Expenses. The corporation shall pay the
expenses (including attorneys' fees) incurred by an indemnitee in defending any
proceeding in advance of its final disposition, provided, however, that the
payment of expenses incurred by a director or officer in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking
by the director or officer to repay all amounts advanced if it should be
ultimately determined that the director or officer is not entitled to be
indemnified under this Article or otherwise.
Section 6.3 Claims. If a claim for indemnification or payment of
expenses under this Article is not paid in full within sixty (60) days after a
written claim therefor by the indemnitee has been received by the corporation,
the indemnitee may file suit to recover the unpaid amount of such claim and, if
successful in whole or in part, shall be entitled to be paid the expenses of
prosecuting such claim. In any such action the corporation shall have the burden
of proving that the indemnitee was not entitled to the requested indemnification
or payment of expenses under applicable law.
Section 6.4 Nonexclusivity of Rights. The rights conferred on any
person by this Article VI shall not be exclusive of any other rights which such
person may have or hereafter acquire under any statute, provision of the
Certificate of Incorporation, these By-laws, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 6.5 Other Indemnification. The corporation's obligation, if
any, to indemnify any person who was or is serving at its request as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust, enterprise, or nonprofit entity shall be reduced by any amount such
person may collect as indemnification from such other corporation, partnership,
joint venture, trust, enterprise or nonprofit enterprise.
Section 6.6 Amendment or Repeal. Any repeal or modification of the
foregoing provisions of this Article VI shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring
prior to the time of such repeal or modification.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Fiscal Year. The fiscal year of the corporation shall be
determined by resolution of the Board of Directors.
Section 7.2 Seal. The corporate seal shall have the name of the
corporation inscribed thereon and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 7.3 Waiver of Notice of Meetings of Stockholders, Directors and
Committees. Any written waiver of notice, 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 members of a
committee of directors need be specified in any written waiver of notice.
Section 7.4 Interested Directors; Quorum. No contract or transaction
between the corporation and one or more of its directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because his, her or their
votes are counted for such purpose, if: (1) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (2) the material facts as to
his or her relationship or interest and as to the contract or transaction are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (3) the contract or transaction is fair as to the corporation
as of the time it is authorized, approved or ratified by the Board of Directors,
a committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
Section 7.5 Form of Records. Any records maintained by the corporation
in the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any other information storage
device, provided that the records so kept can be converted into clearly legible
form within a reasonable time. The corporation shall so convert any records so
kept upon the request of any person entitled to inspect the same.
Section 7.6 Amendment of Bylaws. Unless otherwise restricted by the
Certificate of Incorporation, these Bylaws may be altered or repealed, and new
Bylaws made by the Board of Directors, but the stockholders may make additional
bylaws and may alter and repeal any bylaws whether adopted by them or otherwise.
Section 7.7 Manner of Notice. Except as otherwise provided herein or
permitted by applicable law, notices to directors and stockholders shall be in
writing and delivered personally or mailed to the directors or stockholders at
their addresses appearing on the books of the corporation. Notice to directors
may be given by telegram, telecopier, telephone or other means of electronic
transmission.