EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
CREATIVE COMPUTERS, INC.
a Delaware corporation
TABLE OF CONTENTS
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Page
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ARTICLE I Offices......................................... 1
Section 1 Registered Office............................... 1
Section 2 Other Offices................................... 1
ARTICLE II Stockholders' Meetings.......................... 1
Section 1 Place of Meetings............................... 1
Section 2 Annual Meetings................................. 1
Section 3 Special Meetings................................ 1
Section 4 Notice of Meetings.............................. 2
Section 5 Quorum and Voting............................... 3
Section 6 Voting Rights................................... 4
Section 7 Voting Procedures and Inspectors of Elections... 5
Section 8 List of Stockholders............................ 6
Section 9 Stockholder Proposals at Annual Meetings........ 6
Section 10 Nominations of Persons for Election
to the Board of Directors....................... 7
Section 11 Action Without Meeting.......................... 9
ARTICLE III Directors....................................... 9
Section 1 Number and Term of Office....................... 9
Section 2 Powers.......................................... 10
Section 3 Vacancies....................................... 10
Section 4 Resignations.................................... 10
Section 5 Meetings........................................ 10
Section 6 Quorum and Voting............................... 11
Section 7 Action Without Meeting.......................... 12
Section 8 Fees and Compensation........................... 12
Section 9 Committees...................................... 12
Section 10 Duties of the Chairman of the Board of Directors 14
ARTICLE IV Officers........................................ 14
Section 1 Officers Designated............................. 14
Section 2 Tenure and Duties of Officers................... 14
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ARTICLE V Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation.... 16
Section 1 Execution of Corporate Instruments............... 16
Section 2 Voting of Securities Owned by Corporation........ 16
ARTICLE VI Shares of Stock.................................. 17
Section 1 Form and Execution of Certificates............... 17
Section 2 Lost Certificates................................ 17
Section 3 Transfers........................................ 18
Section 4 Fixing Record Dates.............................. 18
Section 5 Registered Stockholders.......................... 19
ARTICLE VII Other Securities of the Corporation.............. 20
ARTICLE VIII Corporate Seal................................... 20
ARTICLE IX Indemnification of Officers,
Directors, Employees and Agents.................. 21
Section 1 Right to Indemnification......................... 21
Section 2 Authority to Advance Expenses.................... 21
Section 3 Right of Claimant to Bring Suit.................. 22
Section 4 Provisions Nonexclusive.......................... 22
Section 5 Authority to Insure.............................. 23
Section 6 Survival of Rights............................... 23
Section 7 Settlement of Claims............................. 23
Section 8 Effect of Amendment.............................. 23
Section 9 Subrogation...................................... 23
Section 10 No Duplication of Payments....................... 23
ARTICLE X Notices.......................................... 24
ARTICLE XI Amendments....................................... 25
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AMENDED AND RESTATED BYLAWS
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OF
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CREATIVE COMPUTERS, INC.
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ARTICLE I
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Offices
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Section 1. Registered Office. The registered office of the corporation in
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the State of Delaware shall be in the City of Dover, County of Kent.
Section 2. Other Offices. The corporation shall also have and maintain an
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office or principal place of business at 2555 West 190th Street, Torrance,
California 90504, and 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 the business of the corporation may require.
ARTICLE II
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Stockholders' Meetings
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Section 1. Place of Meetings. Meetings of the stockholders of the
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corporation shall be held at such place, either within or without the State of
Delaware, as may be designated from time to time by the Board of Directors, or,
if not so designated, then at the office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof.
Section 2. Annual Meetings. The annual meetings of the stockholders of
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the corporation, commencing with the year 1995, for the purpose of election of
directors and for such other business as may lawfully come before it, shall be
held on such date and at such time as may be designated from time to time by the
Board of Directors, or, if not so designated, then at 10:00 a.m. on the second
Wednesday in May in each year if not a legal holiday, and, if a legal holiday,
at the same hour and place on the next succeeding day not a holiday.
Section 3. Special Meetings. Special Meetings of the stockholders of the
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corporation may be called, for any purpose or purposes, by the Chairman of the
Board or the President or the Board of Directors at any time. Upon written
request of any stockholder or stockholders holding in the aggregate ten percent
the voting power of all stockholders delivered in person or sent by registered
mail to the Chairman of the Board, President or Secretary of the corporation,
the Secretary shall call a special meeting of
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stockholders to be held at the office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof at such time as the
Secretary may fix, such meeting to be held not less than ten nor more than sixty
days after the receipt of such request, and if the Secretary shall neglect or
refuse to call such meeting, within seven days after the receipt of such
request, the stockholder making such request may do so.
Section 4. Notice of Meetings.
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(a) Except as otherwise provided by law or the Certificate of
Incorporation, written notice of each meeting of stockholders, specifying the
place, date and hour and purpose or purposes of the meeting, shall be given not
less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote thereat, directed to his or her address as it
appears upon the books of the corporation.
(b) If at any meeting action is proposed to be taken which, if taken, would
entitle stockholders fulfilling the requirements of section 262(d) of the
Delaware General Corporation Law to an appraisal of the fair value of their
shares, the notice of such meeting shall contain a statement of that purpose and
to that effect and shall be accompanied by a copy of that statutory section.
(c) 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 unless the adjournment is for more
than 30 days, or unless after the adjournment a new record date is fixed for the
adjourned meeting, in which event a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
(d) Notice of the time, place and purpose of any meeting of stockholders
may be waived in writing, either before or after such meeting, and to the extent
permitted by law will be waived by any stockholder by his or her attendance
thereat, in person or by proxy. Any stockholder so waiving notice of such
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
(e) Unless and until voted, every proxy shall be revocable at the pleasure
of the person who executed it or of his or her legal representatives or assigns,
except in those cases where an irrevocable proxy permitted by statute has been
given.
Section 5. Quorum and Voting.
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(a) At all meetings of stockholders, except where otherwise provided by
law, the Certificate of Incorporation, or these Bylaws, the presence, in person
or by proxy duly authorized, of the holders of a majority of the outstanding
shares of stock entitled to vote shall constitute a quorum for the transaction
of business. Shares, the voting of which at said meeting have been enjoined, or
which for any reason cannot be lawfully voted at such meeting, shall not be
counted to determine a quorum at said meeting. In the absence of a quorum, any
meeting of stockholders may be adjourned, from time to time, by vote of the
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holders of a majority of the shares represented thereat, but no other business
shall be transacted at such meeting. At such adjourned meeting at which a quorum
is present or represented any business may be transacted which might have been
transacted at the original meeting. The stockholders present at a duly called or
convened meeting, at which a quorum is present, may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
(b) Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, all action taken by the holders of a majority of the voting
power represented at any meeting at which a quorum is present shall be valid and
binding upon the corporation.
(c) Where a separate vote by a class or classes is required, a majority of
the outstanding shares of such class or classes, present in person or
represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote on that matter and the affirmative vote of the majority of
shares of such class or classes present in person or represented by proxy at the
meeting shall be the act of such class.
Section 6. Voting Rights.
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(a) Except as otherwise provided by law, only persons in whose names shares
entitled to vote stand on the stock records of the corporation on the record
date for determining the stockholders entitled to vote at said meeting shall be
entitled to vote at such meeting. Shares standing in the names of two or more
persons shall be voted or represented in accordance with the determination of
the majority of such persons, or, if only one of such persons is present in
person or represented by proxy, such person shall have the right to vote such
shares and such shares shall be deemed to be represented for the purpose of
determining a quorum.
(b) Every person entitled to vote or execute consents shall have the right
to do so either in person or by an agent or agents authorized by a written proxy
executed by such person or his or her duly authorized agent, which proxy shall
be filed with the Secretary of the corporation at or before the meeting at which
it is to be used. Said proxy so appointed need not be a stockholder. No proxy
shall be voted on after three years from its date unless the proxy provides for
a longer period.
(c) Without limiting the manner in which a stockholder may authorize
another person or persons to act for him or her as proxy pursuant to subsection
(b) of this section, the following shall constitute a valid means by which a
stockholder may grant such authority:
(1) A stockholder may execute a writing authorizing another person or
persons to act for him or her as proxy. Execution may be accomplished by the
stockholder or his or her authorized officer, director, employee or agent
signing such writing or causing his or her signature to be affixed to such
writing by any reasonable means including, but not limited to, by facsimile
signature.
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(2) A stockholder may authorize another person or persons to act for
him or her as proxy by transmitting or authorizing the transmission of a
telegram, cablegram or other means of electronic transmission to the person who
will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the
holder of the proxy to receive such transmission, provided that any such
telegram, cablegram or other means of electronic transmission must either set
forth or be submitted with information from which it can be determined that the
telegram, cablegram or other electronic transmission was authorized by the
stockholder. Such authorization can be established by the signature of the
stockholder on the proxy, either in writing or by a signature stamp or facsimile
signature, or by a number or symbol from which the identity of the stockholder
can be determined, or by any other procedure deemed appropriate by the
inspectors or other persons making the determination as to due authorization. If
it is determined that such telegrams, cablegrams or other electronic
transmissions are valid, the inspectors or, if there are no inspectors, such
other persons making that determination shall specify the information upon which
they relied.
(d) Any copy, facsimile telecommunication or other reliable reproduction of
the writing or transmission created pursuant to subsection (c) of this section
may be substituted or used in lieu of the original writing or transmission for
any and all purposes for which the original writing or transmission could be
used, provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
Section 7. Voting Procedures and Inspectors of Elections.
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(a) The corporation shall, in advance of any meeting of stockholders,
appoint one or more inspectors to act at the meeting and make a written report
thereof. The corporation may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate 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 faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
(b) The inspectors shall (i) ascertain the number of shares outstanding and
the voting power of each, (ii) determine the shares represented at a 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 represented at the meeting, and their
count of all votes and ballots. The inspectors may appoint or retain other
persons or entities to assist the inspectors in the performance of the duties of
the inspectors.
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(c) 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. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Court of Chancery upon application by a stockholder shall determine
otherwise.
(d) In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with
Section 212(c)(2) of the Delaware General Corporation Law, ballots and the
regular books and records of the corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to subsection (b)(v) of this section shall specify the
precise information considered by them including the person or persons from whom
they obtained the information, when the information was obtained, the means by
which the information was obtained and the basis for the inspectors, belief that
such information is accurate and reliable.
Section 8. List of Stockholders. The officer who has charge of the stock
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ledger of the corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at
said meeting, arranged in alphabetical order, showing the address of 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 where the meeting is to be
held and which place shall be specified in the notice of the meeting, or, if not
specified, at the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 9. Stockholder Proposals at Annual Meetings. At an annual meeting
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of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, otherwise
properly brought before the meeting by or at the direction of the Board of
Directors or otherwise properly brought before the meeting by a stockholder. In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a stockholder, the stockholder must have
given timely notice thereof in writing to the Secretary of the corporation. To
be timely, a stockholder's notice must be delivered to or mailed and received at
the principal executive offices of the corporation, not less than 45 days nor
more than 75 prior to the date on which the corporation first mailed its proxy
materials for the previous year's annual meeting of stockholders (or the date on
which the corporation mails its proxy materials for
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the current year if during the prior year the corporation did not hold an annual
meeting or if the date of the annual meeting was changed more than thirty (30)
days from the prior year). A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting, (i) a brief description of the business desired to be brought before
the annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and record address of the stockholder proposing such
business, (iii) the class and number of shares of the corporation which are
beneficially owned by the stockholder and (iv) any material interest of the
stockholder in such business.
Notwithstanding anything in the Bylaws to the contrary, no business shall
be conducted at the annual meeting except in accordance with the procedures set
forth in this Section 9, provided, however, that nothing in this Section 9 shall
be deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting in accordance with said procedure.
The Chairman of an annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 2.9, and if he or she
should so determine, he or she shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
Nothing in this Section 2.9 shall affect the right of a stockholder to
request inclusion of a proposal in the corporation's proxy statement to the
extent that such right is provided by an applicable rule of the Securities and
Exchange Commission.
Section 10. Nominations of Persons for Election to the Board of Directors.
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In addition to any other applicable requirements, only persons who are nominated
in accordance with the following procedures shall be eligible for election as
directors. Nominations of persons for election to the Board of Directors of the
corporation may be made at a meeting of stockholders by or at the direction of
the Board of Directors, by any nominating committee or person appointed by the
Board of Directors or by any stockholder of the corporation entitled to vote for
the election of directors at the meeting who complies with the notice procedures
set forth in this Section 10. Such nominations, other than those made by or at
the direction of the Board of Directors, shall be made pursuant to timely notice
in writing to the Secretary of the corporation. To be timely, a stockholder's
notice shall be delivered to or mailed and received at the principal executive
offices of the corporation not less than 30 days nor more than 60 days prior to
the meeting; provided, however, that in the event that less than 40 days notice
or prior public disclosure of the date of the meeting is given or made to
stockholders, notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public disclosure was made.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, (i)
the name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person, (iii) the class and number of
shares of the corporation which are beneficially owned by the person, and (iv)
any other information relating to the person that
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is required to be disclosed in solicitations for proxies for election of
directors pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended; and (b) as to the stockholder giving the notice, (i) the name and
record address of the stockholder, and (ii) the class and number of shares of
the corporation which are beneficially owned by the stockholder. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation. No person shall be
eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein. These provisions shall not
apply to nomination of any persons entitled to be separately elected by holders
of preferred stock.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he and she should so determine, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
Section 11. Action Without Meeting. Unless otherwise provided in the
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Certificate of Incorporation, any action required by statute to be taken at any
annual or special meeting of stockholders of the corporation, or any action
which may be taken at any annual or special meeting of such 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, are 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. To be effective, a
written consent must be delivered to the corporation by delivery to its
registered office in Delaware, its principal place of business, or an officer or
agent of the corporation having custody of the books in which proceedings of
meetings of stockholders are recorded. Delivery made to a corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. Every written consent 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 60 days of the
earliest dated consent delivered in the manner required by this Section to the
corporation, written consents signed by a sufficient number of holders to take
action are delivered to the corporation in accordance with this Section. 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.
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ARTICLE III
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Directors
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Section 1. Number and Term of Office. The number of directors
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constituting the entire Board of Directors shall not be less than three nor more
than five as fixed from time to time by vote of a majority of the entire Board
of Directors, provided, however, that the number of directors shall not be
reduced so as to shorten the term of any director at the time in office, and
provided further, that the number of directors constituting the entire Board of
Directors shall be three until otherwise fixed by a majority of the entire
Board.
Section 2. Powers. The powers of the corporation shall be exercised, its
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business conducted and its property controlled by or under the direction of the
Board of Directors.
Section 3. Vacancies. Vacancies and newly created directorships resulting
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from any increase in the authorized number of directors may be filled by a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, and each director so elected shall hold office until
the next election of directors, and until his or her successor shall have been
duly elected and qualified. A vacancy in the Board of Directors shall be deemed
to exist under this section in the case of the death, removal or resignation of
any director, or if the stockholders fail at any meeting of stockholders at
which directors are to be elected (including any meeting referred to in Section
4 below) to elect the number of directors then constituting the whole Board.
Section 4. Resignations and Removals.
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(a) Any director may resign at any time by delivering his written
resignation to the Secretary, such resignation to specify whether it will be
effective at a particular time, upon receipt by the Secretary or at the pleasure
of the Board of Directors. If no such specification is made it shall be deemed
effective at the pleasure of the Board of Directors. When one or more directors
shall resign from the Board, effective at a future date, a majority of the
directors then in office, including those who have so resigned, shall have power
to fill such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office for the unexpired portion of the term of the director whose
place shall be vacated and until his successor shall have been duly elected and
qualified.
(b) At a special meeting of stockholders called for the purpose in the
manner hereinabove provided, the Board of Directors, or any individual director,
may be removed from office, with or without cause, and a new director or
directors elected by a vote of stockholders holding a majority of the
outstanding shares entitled to vote at an election of directors.
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Section 5. Meetings.
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(a) The annual meeting of the Board of Directors shall be held immediately
after the annual stockholders, meeting and at the place where such meeting is
held or at the place announced by the Chairman at such meeting. No notice of an
annual meeting of the Board of Directors shall be necessary and such meeting
shall be held for the purpose of electing officers and transacting such other
business as may lawfully come before it.
(b) Except as hereinafter otherwise provided, regular meetings of the Board
of Directors shall be held in the office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof. Regular meetings of the
Board of Directors may also be held at any place within or without the State of
Delaware which has been designated by resolutions of the Board of Directors or
the written consent of all directors.
(c) Special meetings of the Board of Directors may be held at any time and
place within or without the State of Delaware whenever called by the Chairman of
the Board or, if there is no Chairman of the Board, by the President, or by a
majority of the directors then in office.
(d) Written notice of the time and place of all regular and special
meetings of the Board of Directors shall be delivered personally to each
director or sent by telegram or facsimile transmission at least 48 hours before
the start of the meeting, or sent by first class mail at least 120 hours
before the start of the meeting. Notice of any meeting may be waived in writing
at any time before or after the meeting and will be waived by any director by
attendance thereat.
Section 6. Quorum and Voting.
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(a) A quorum of the Board of Directors shall consist of a majority of the
exact number of directors fixed from time to time in accordance with Section 1
of Article III of these Bylaws, but not less than one; provided, however, at any
meeting whether a quorum be present or otherwise, a majority of the directors
present may adjourn from time to time until the time fixed for the next regular
meeting of the Board of Directors, without notice other than by announcement at
the meeting.
(b) At each meeting of the Board at which a quorum is present all questions
and business shall be determined by a vote of a majority of the directors
present, unless a different vote be required by law, the Certificate of
Incorporation or these Bylaws.
(c) Any member of the Board of Directors, or of any committee thereof, may
participate in a meeting by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting by such means shall
constitute presence in person at such meeting.
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(d) The transactions of any meeting of the Board of Directors, or any
committee thereof, however called or noticed, or wherever held, shall be as
valid as though had at a meeting duly held after regular call and notice, if a
quorum be present and if, either before or after the meeting, each of the
directors not present shall sign a written waiver of notice, or a consent to
holding such meeting, or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Section 7. Action Without Meeting. Unless otherwise restricted by the
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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 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.
Section 8. Fees and Compensation. Directors and members of committees may
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receive such compensation, if any, for their services, and such reimbursement
for expenses, as may be fixed or determined by resolution of the Board of
Directors.
Section 9. Committees.
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(a) Executive Committee: The Board of Directors may, by resolution passed
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by a majority of the whole Board, appoint an Executive Committee of not less
than one member, each of whom shall be a director. The Executive Committee, to
the extent permitted by law, shall have and may exercise when the Board of
Directors is not in session all powers of the Board in the management of the
business and affairs of the corporation, including, without limitation, the
power and authority to declare a dividend or to authorize the issuance of stock,
except such committee shall not have the power or authority to amend the
Certificate of Incorporation, to adopt an agreement or merger or consolidation,
to recommend to the stockholders the sale, lease or exchange of all or
substantially all of the corporation's property and assets, to recommend to the
stockholders of the Corporation a dissolution of the Corporation or a revocation
of a dissolution, or to amend these Bylaws.
(b) Other Committees: The Board of Directors may, by resolution passed by
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a majority of the whole Board, from time to time appoint such other committees
as may be permitted by law. Such other committees appointed by the Board of
Directors shall have such powers and perform such duties as may be prescribed by
the resolution or resolutions creating such committee, but in no event shall any
such committee have the powers denied to the Executive Committee in these
Bylaws.
(c) Term: The members of all committees of the Board of Directors shall
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serve a term coexistent with that of the Board of Directors which shall have
appointed such committee. The Board, subject to the provisions of subsections
(a) or (b) of this Section 9, may at any time increase or decrease the number of
members of a committee or terminate the existence of a committee; provided, that
no committee shall consist of less than one
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member. The membership of a committee member shall terminate on the date of his
death or voluntary resignation, but the Board may at any time for any reason
remove any individual committee member and the Board may fill any committee
vacancy created by death, resignation, removal or increase in the number of
members of the committee. 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, and, in addition, in the
absence or disqualification of any member of a committee, the member or members
thereof present at any meeting and not disqualified from voting, whether or not
he, she or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any such absent or
disqualified member.
(d) Meetings: Unless the Board of Directors shall otherwise provide,
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regular meetings of the Executive Committee or any other committee appointed
pursuant to this Section 9 shall be held at such times and places as are
determined by the Board of Directors, or by any such committee, and when notice
thereof has been given to each member of such committee, no further notice of
such regular meetings need be given thereafter; special meetings of any such
committee may be held at the principal office of the corporation required to be
maintained pursuant to Section 2 of Article I hereof; or at any place which has
been designated from time to time by resolution of such committee or by written
consent of all members thereof, and may be called by any director who is a
member of such committee, upon written notice to the members of such committee
of the time and place of such special meeting given in the manner provided for
the giving of written notice to members of the Board of Directors of the time
and place of special meetings of the Board of Directors. Notice of any special
meeting of any committee may be waived in writing at any time after the meeting
and will be waived by any director by attendance thereat. A majority of the
authorized number of members of any such committee shall constitute a quorum for
the transaction of business, and the act of a majority of those present at any
meeting at which a quorum is present shall be the act of such committee.
Section 10. Duties of the Chairman of the Board of Directors. The
---------- ------------------------------------------------
Chairman of the Board of Directors shall, when present, preside at all meetings
of the stockholders and the Board of Directors. The Chairman of the Board of
Directors shall perform such other duties and have such other powers as the
Board of Directors shall designate from time to time.
ARTICLE IV
----------
Officers
--------
Section 1. Officers Designated. The officers of the corporation shall be
--------- -------------------
a President, and one or more Vice-Presidents, a Secretary, and a Treasurer. The
order of the seniority of the Vice Presidents shall be in the order of their
nomination, unless otherwise determined by the Board of Directors. The Board of
Directors or the President may also appoint one or more assistant secretaries,
assistant treasurers, and such other officers and
11
agents with such powers and duties as it or he shall deem necessary. The Board
of Directors may assign such additional titles to one or more of the officers as
they shall deem appropriate. Any one person may hold any number of offices of
the corporation at any one time unless specifically prohibited therefrom by law.
The salaries and other compensation of the officers of the corporation shall be
fixed by or in the manner designated by the Board of Directors.
Section 2. Tenure and Duties of Officers.
--------- -----------------------------
(a) General: All officers shall hold office at the pleasure of the Board
-------
of Directors and until their successors shall have been duly elected and
qualified, unless sooner removed. Any officer elected or appointed by the Board
of Directors may be removed at any time by the Board of Directors. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the
Board of Directors. Nothing in these Bylaws shall be construed as creating any
kind of contractual right to employment with the corporation.
(b) Duties of President: The President shall be the chief executive
-------------------
officer of the corporation in the absence of the Chairman of the Board and shall
preside at all meetings of the stockholders and at all meetings of the Board of
Directors, unless the Chairman of the Board of Directors has been appointed and
is present. The President shall perform such other duties and have such other
powers as the Board of Directors shall designate from time to time.
(c) Duties of Vice-Presidents: The Vice-Presidents, in the order of their
-------------------------
seniority, may assume and perform the duties of the President in the absence or
disability of the President or whenever the office of the President is vacant.
The Vice-Presidents shall perform such other duties and have such other powers
as the Board of Directors or the President shall designate from time to time.
(d) Duties of Secretary: The Secretary shall attend all meetings of the
-------------------
stockholders and of the Board of Directors and any committee thereof, and shall
record all acts and proceedings thereof in the minute book of the corporation.
The Secretary shall give notice, in conformity with these Bylaws, of all
meetings of the stockholders, and of all meetings of the Board of Directors and
any Committee thereof requiring notice. The Secretary shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time. The President may direct any Assistant Secretary to assume and
perform the duties of the Secretary in the absence or disability of the
Secretary, and each Assistant Secretary shall perform such other duties and have
such other powers as the Board of Directors or the President shall designate
from time to time.
(e) Duties of Treasurer: The Treasurer shall keep or cause to be kept the
-------------------
books of account of the corporation in a thorough and proper manner, and shall
render statements of the financial affairs of the corporation in such form and
as often as required by the Board of Directors or the President. The Treasurer,
subject to the order of the Board of Directors, shall have the custody of all
funds and securities of the corporation. The
12
Treasurer shall perform all other duties commonly incident to his office and
shall perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time. The President may
direct any Assistant Treasurer to assume and perform the duties of the Treasurer
in the absence or disability of the Treasurer, and each Assistant Treasurer
shall perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time.
ARTICLE V
---------
Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation
---------------------------------------------
Section 1. Execution of Corporate Instruments.
--------- ----------------------------------
(a) The Board of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other person or persons, to
execute any corporate instrument or document, or to sign the corporate name
without limitation, except where otherwise provided by law, and such execution
or signature shall be binding upon the corporation.
(b) Unless otherwise specifically determined by the Board of Directors or
otherwise required by law, formal contracts of the corporation, promissory
notes, deeds of trust, mortgages and other evidences of indebtedness of the
corporation, and other corporate instruments or documents requiring the
corporate seal, and certificates of shares of stock owned by the corporation,
shall be executed, signed or endorsed by the Chairman of the Board (if there be
such an officer appointed) or by the President; such documents may also be
executed by any Vice-President and by the Secretary or Treasurer or any
Assistant Secretary or Assistant Treasurer. All other instruments and documents
requiring the corporate signature, but not requiring the corporate seal, may be
executed as aforesaid or in such other manner as may be directed by the Board of
Directors.
(c) All checks and drafts drawn on banks or other depositaries on funds to
the credit of the corporation, or in special accounts of the corporation, shall
be signed by such person or persons as the Board of Directors shall authorize so
to do.
Section 2. Voting of Securities Owned by Corporation. All stock and other
--------- -----------------------------------------
securities of other corporations owned or held by the corporation for itself, or
for other parties in any capacity, shall be voted, and all proxies with respect
thereto shall be executed, by the person authorized so to do by resolution of
the Board of Directors or, in the absence of such authorization, by the Chairman
of the Board (if there be such an officer appointed), or by the President, or by
any Vice-President.
13
ARTICLE VI
----------
Shares of Stock
---------------
Section 1. Form and Execution of Certificates. Certificates for the
--------- ----------------------------------
shares of stock of the corporation shall be in such form as is consistent with
the Certificate of Incorporation and applicable law. 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 of the Board (if there be such an
officer appointed), or by the President or any Vice-President and by the
Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary,
certifying the number of shares owned by him or her in the corporation. Any or
all of 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 with the same effect as if he were such officer, transfer agent, or
registrar 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 powers,
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 certificate which the
corporation shall issue to represent such class or series of stock, provided
that, except as otherwise provided in section 202 of the Delaware General
Corporation Law, in lieu of the foregoing requirements, there may be set forth
on the face or back of the certificate 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 powers,
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.
Section 2. Lost Certificates. The Board of Directors may direct a new
--------- -----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person claiming
the certificate of stock 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
indemnify the corporation in such manner as it shall require and/or to give the
corporation a surety bond in such form and amount as it may direct as indemnity
against any claim that may be made against the corporation with respect to the
certificate alleged to have been lost or destroyed.
Section 3. Transfers. Transfers of record of shares of stock of the
--------- ---------
corporation shall be made only upon its books by the holders thereof, in person
or by attorney duly authorized, and upon the surrender of a certificate or
certificates for a like number of shares, properly endorsed.
14
Section 4. Fixing Record Dates.
--------- -------------------
(a) 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, 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 shall not be more than 60 nor
less than 10 days before the date of such meeting. If no record date is fixed by
the Board of Directors, 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 date on
which the meeting is held. A determination of stockholders of record entitled
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.
(b) In order that the corporation may determine the stockholders entitled
to consent to corporate action in writing without a meeting, 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 date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date has been fixed by the Board of Directors, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by the Delaware General Corporation 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 by delivery to its registered office in
Delaware, its principal place of business, or an officer or agent of the
corporation having custody of the books in which proceedings of meetings of
stockholders are recorded. Delivery made to a corporation's registered office
shall be by hand or by certified or registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by
the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(c) In order that the corporation may determine the stockholders entitled
to receive payment of any dividend or other distribution or allotment of any
rights or the stockholders 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, and which record date shall be not more than 60 days prior to such
action. If no record date is fixed, the record date for determining stockholders
for any such purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
Section 5. Registered Stockholders. The corporation shall be entitled to
--------- -----------------------
recognize the exclusive right of a person registered on its books as the owner
of shares to receive
15
dividends, and to vote as such owner, and shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of Delaware.
ARTICLE VII
-----------
Other Securities of the Corporation
-----------------------------------
All bonds, debentures and other corporate securities of the corporation,
other than stock certificates, may be signed by the Chairman of the Board (if
there be such an officer appointed), or the President or any Vice-President or
such other person as may be authorized by the Board of Directors and the
corporate seal impressed thereon or a facsimile of such seal imprinted thereon
and attested by the signature of the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer; provided, however, that where any such
bond, debenture or other corporate security shall be authenticated by the manual
signature of a trustee under an indenture pursuant to which such bond, debenture
or other corporate security shall be issued, the signature of the persons
signing and attesting the corporate seal on such bond, debenture or other
corporate security may be the imprinted facsimile of the signatures of such
persons. Interest coupons appertaining to any such bond, debenture or other
corporate security, authenticated by a trustee as aforesaid, shall be signed by
the Treasurer or an Assistant Treasurer of the corporation, or such other person
as may be authorized by the Board of Directors, or bear imprinted thereon the
facsimile signature of such person. In case any officer who shall have signed or
attested any bond, debenture or other corporate security, or whose facsimile
signature shall appear thereon or before the bond, debenture or other corporate
security so signed or attested shall have been delivered, such bond, debenture
or other corporate security nevertheless may be adopted by the corporation and
issued and delivered as though the person who signed the same or whose facsimile
signature shall have been used thereon had not ceased to be such officer of the
corporation.
ARTICLE VIII
------------
Corporate Seal
--------------
The corporate seal shall consist of a die bearing the name of the
corporation and the state and date of its incorporation. Said seal may be used
by causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE IX
----------
Indemnification of
Officers, Directors, Employees and Agents
-----------------------------------------
Section 1. Right to Indemnification. Each person who was or is a party or
--------- ------------------------
is threatened to be made a party to or is involved (as a party, witness, or
otherwise), in any
16
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereinafter a "Proceeding"), by
reason of the fact that he, or a person of whom he is the legal representative,
is or was a director, officer, employee, or agent 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, or
other enterprise, including service with respect to employee benefit plans,
whether the basis of the Proceeding is alleged action in an official capacity as
a director, officer, employee, or agent or in any other capacity while serving
as a director, officer, employee, or agent (hereafter an "Agent"), shall be
indemnified and held harmless by the corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended or interpreted (but, in the case of any such amendment or
interpretation, only to the extent that such amendment or interpretation permits
the corporation to provide broader indemnification rights than were permitted
prior thereto) against all expenses, liability, and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to
be paid in settlement, and any interest, assessments, or other charges imposed
thereon, and any federal, state, local, or foreign taxes imposed on any Agent as
a result of the actual or deemed receipt of any payments under this Article)
reasonably incurred or suffered by such person in connection with investigating,
defending, being a witness in, or participating in (including on appeal), or
preparing for any of the foregoing in, any Proceeding (hereinafter "Expenses");
provided, however, that except as to actions to enforce indemnification rights
- -------- -------
pursuant to Section 3 of this Article, the corporation shall indemnify any Agent
seeking indemnification in connection with a Proceeding (or part thereof)
initiated by such person only if the Proceeding (or part thereof) was authorized
by the Board of Directors of the corporation. The right to indemnification
conferred in this Article shall be a contract right.
Section 2. Authority to Advance Expenses. Expenses incurred by an officer
--------- -----------------------------
or director (acting in his capacity as such) in defending a Proceeding shall be
paid by the corporation in advance of the final disposition of such Proceeding,
provided, however, that such Expenses shall be advanced only upon delivery to
- -------- --------
the corporation of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the corporation as authorized in this Article or otherwise.
Expenses incurred by other Agents of the corporation (or by the directors or
officers not acting in their capacity as such, including service with respect to
employee benefit plans) may be advanced upon such terms and conditions as the
Board of Directors deems appropriate. Any obligation to reimburse the
corporation for Expense advances shall be unsecured and no interest shall be
charged thereon.
Section 3. Right of Claimant to Bring Suit. If a claim under Section 1 or
--------- -------------------------------
2 of this Article is not paid in full by the corporation within 60 days after a
written claim has been received by the corporation, the claimant may at any time
thereafter bring suit against the corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense (including attorneys, fees) of prosecuting such
claim. The burden of proof of such proceeding shall be on the claimant to
establish that he is entitled to be indemnified under this Article. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in
17
defending a Proceeding in advance of its final disposition where the required
undertaking has been tendered to the corporation) that the claimant has not met
the standards of conduct that make it permissible under the Delaware General
Corporation Law for the corporation to indemnify the claimant for the amount
claimed. The burden of proving such a defense shall be on the corporation.
Neither the failure of the corporation (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of the claimant is
proper under the circumstances because he has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an actual
determination by the corporation (including its Board of Directors, independent
legal counsel, or its stockholders) that the claimant had not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that claimant has not met the applicable standard of conduct.
Section 4. Provisions Nonexclusive. The rights conferred on any person by
--------- -----------------------
this Article shall not be exclusive of any other rights that such person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in an official capacity and as to action in another
capacity while holding such office. To the extent that any provision of the
Certificate of Incorporation, agreement, or vote of the stockholders or
disinterested directors is inconsistent with these bylaws, the provision,
agreement, or vote shall take precedence.
Section 5. Authority to Insure. The corporation may purchase and maintain
--------- -------------------
insurance to protect itself and any Agent against any Expense, whether or not
the corporation would have the power to indemnify the Agent against such Expense
under applicable law or the provisions of this Article.
Section 6. Survival of Rights. The rights provided by this Article shall
--------- ------------------
continue as to a person who has ceased to be an Agent and shall inure to the
benefit of the heirs, executors, and administrators of such a person.
Section 7. Settlement of Claims. The corporation shall not be liable to
--------- --------------------
indemnify any Agent under this Article (a) for any amounts paid in settlement of
any action or claim effected without the corporation's written consent, which
consent shall not be unreasonably withheld; or (b) for any judicial award if the
corporation was not given a reasonable and timely opportunity, at its expense,
to participate in the defense of such action.
Section 8. Effect of Amendment. Any amendment, repeal, or modification of
--------- -------------------
this Article shall not adversely affect any right or protection of any Agent
existing at the time of such amendment, repeal, or modification.
Section 9. Subrogation. In the event of payment under this Article, the
--------- -----------
corporation shall be subrogated to the extent of such payment to all of the
rights of recovery of the Agent, who shall execute all papers required and shall
do everything that may be necessary
18
to secure such rights, including the execution of such documents necessary to
enable the corporation effectively to bring suit to enforce such rights.
Section 10. No Duplication of Payments. The corporation shall not be
---------- --------------------------
liable under this Article to make any payment in connection with any claim made
against the Agent to the extent the Agent has otherwise actually received
payment (under any insurance policy, agreement, vote, or otherwise) of the
amounts otherwise indemnifiable hereunder.
ARTICLE X
---------
Notices
-------
Whenever, under any provisions of these Bylaws, notice is required to be
given to any stockholder, the same shall be given in writing, timely and duly
deposited in the United States Mail, postage prepaid, and addressed to his or
her last known post office address as shown by the stock record of the
corporation or its transfer agent. Any notice required to be given to any
director may be given by the method hereinabove stated, or by telegram or other
means of electronic transmission, except that such notice other than one which
is delivered personally, shall be sent to such address or (in the case of
facsimile telecommunication) facsimile telephone number as such director shall
have filed in writing with the Secretary of the corporation, or, in the absence
of such filing, to the last known post office address of such director. If no
address of a stockholder or director be known, such notice may be sent to the
office of the corporation required to be maintained pursuant to Section 2 of
Article I hereof. An affidavit of mailing, executed by a duly authorized and
competent employee of the corporation or its transfer agent appointed with
respect to the class of stock affected, specifying the name and address or the
names and addresses of the stockholder or stockholders, director or directors,
to whom any such notice or notices was or were given, and the time and method of
giving the same, shall be conclusive evidence of the statements therein
contained. All notices given by mail, as above provided, shall be deemed to have
been given as at the time of mailing and all notices given by telegram or other
means of electronic transmission shall be deemed to have been given as at the
sending time recorded by the telegraph company or other electronic transmission
equipment operator transmitting the same. It shall not be necessary that the
same method of giving be employed in respect of all directors, but one
permissible method may be employed in respect of any one or more, and any other
permissible method or methods may be employed in respect of any other or others.
The period or limitation of time within which any stockholder may exercise any
option or right, or enjoy any privilege or benefit, or be required to act, or
within which any director may exercise any power or right, or enjoy any
privilege, pursuant to any notice sent him or her in the manner above provided,
shall not be affected or extended in any manner by the failure of such a
stockholder or such director to receive such notice. Whenever any notice is
required to be given under the provisions of the statutes or of the Certificate
of Incorporation, or of these Bylaws, a waiver thereof in writing signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Whenever notice is required
to be given, under any provision of law or of the Certificate of Incorporation
or Bylaws of the corporation, to any person with whom communication is unlawful,
the
19
giving of such notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license or permit to
give such notice to such person. Any action or meeting which shall be taken or
held without notice to any such person with whom communication is unlawful shall
have the same force and effect as if such notice had been duly given. In the
event that the action taken by the corporation is such as to require the filing
of a certificate under any provision of the Delaware General Corporation Law,
the certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
ARTICLE XI
----------
Amendments
----------
These Bylaws may be repealed, altered or amended or new Bylaws adopted by
written consent of stockholders in the manner authorized by Section 11 of
Article II, or at any meeting of the stockholders, either annual or special, by
the affirmative vote of a majority of the stock entitled to vote at such
meeting. The Board of Directors shall also have the authority to repeal, alter
or amend these Bylaws or adopt new Bylaws (including, without limitation, the
amendment of any Bylaws setting forth the number of directors who shall
constitute the whole Board of Directors) by unanimous written consent or at any
annual, regular, or special meeting by the affirmative vote of a majority of the
whole number of directors, subject to the power of the stockholders to change or
repeal such Bylaws and provided that the Board of Directors shall not make or
alter any Bylaws fixing the qualifications, classifications, or term of office
of directors.
20