EXHIBIT 3(II)
BY-LAWS
OF
K2 INC.
ARTICLE I
OFFICES
The Corporation shall maintain a registered office in the State of
Delaware as required by law. The Corporation may also have offices at other
places, within and without the State of Delaware.
ARTICLE II
STOCKHOLDERS
SECTION 1. Annual meetings of stockholders shall be held at such times and
such places, within or without the State or Delaware, as may be fixed from time
to time by the Board of Directors.
SECTION 2. Except as otherwise required by statute or the Corporation's
Certificate of Incorporation, special meetings of stockholders may be called by
the Board of Directors or the Chairman of the Board. Special meetings of
stockholders shall be held on such dates and at such times and such places,
within or without the State of Delaware, as shall be stated in the notices of
such meetings. Notice of any special meeting shall state the purpose or purposes
for which the meeting is to be held and no other business shall be transacted
except as stated in such notice.
SECTION 3. The holders of a majority of the issued and outstanding shares
of the capital stock of the Corporation entitled to vote thereat, present in
person or
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represented by proxy, shall constitute a quorum for the transaction of
business at all meetings of stockholders.
SECTION 4. Except as otherwise required by statute, the Corporation's
Certificate of Incorporation or these By-Laws, all matters coming before any
meeting of stockholders shall be decided by the vote of the holders of a
majority of the shares of capital stock of the Corporation present in person or
represented by proxy at such meeting and voting thereon, a quorum being present.
SECTION 5. The Board of Directors, or, if the Board shall not have made the
appointment, the chairman presiding at any meeting of stockholders, shall have
power to appoint two or more persons to act as inspectors, to receive, canvass
and report the votes cast by the stockholders at such meeting.
SECTION 6. The Chairman of the Board shall preside at all meetings of
stockholders; and in his absence, the Board of Directors may appoint a person to
act as chairman of the meeting.
SECTION 7. The Secretary or an Assistant Secretary shall act as secretary
at all meetings of stockholders; and in their absence, the chairman of the
meeting shall appoint a person to act as secretary of the meeting.
SECTION 8. At any meeting of the stockholders, only such business shall be
conducted as shall have been brought before the meeting (i) by or at the
direction of the Board or (ii) by any stockholder of the Corporation who
complies with the notice procedures set forth in this Section 8 and Section 9 of
Article II. For business to be properly brought before any meeting of the
stockholders by a stockholder, the stockholder must have given notice thereof in
writing to the Secretary of the Corporation not less than 90 days in advance of
such meeting or, if later, the tenth day
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following the first public announcement of the date of such meeting, and such
business must be a proper matter for stockholder action under the General
Corporation Law of the State of Delaware. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the meeting (1) a brief description of the business desired to be
brought before the meeting and the reasons for conducting such business at
the meeting, (2) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business, (3) the class and number
of shares of the Corporation that are beneficially owned by the stockholder,
and (4) any material interest of the stockholder in such business. In
addition, the stockholder making such proposal shall promptly provide any
other information reasonably requested by the Corporation. The chairman of
any such meeting shall have the power and the duty to determine whether any
business proposed to be brought before the meeting has been made in
accordance with the procedure set forth in these By-Laws and shall direct
that any business not properly brought before the meeting shall not be
considered. Notwithstanding anything in these By-Laws to the contrary, no
business shall be conducted at any meeting of the stockholders except in
accordance with the procedures set forth in this Section 8 and Section 9 of
Article II. For purposes of this Section 8 and Section 9 of Article II,
"public announcement" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or a 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
Securities Exchange Act of 1934, as amended, or any successor provision.
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SECTION 9. Nominations for the election of directors may be made by the
Board or by any stockholder entitled to vote in the election of directors;
provided, however, that a stockholder may nominate a person for election as a
director at a meeting only if written notice of such stockholder's intent to
make such nomination has been given to the Secretary of the Corporation not
later than 90 days in advance of such meeting or, if later, the tenth day
following the first public announcement of the date of such meeting. Each such
notice shall set forth: (i) the name and address of the stockholder who intends
to make the nomination and of the person or persons to be nominated; (ii) 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 and nominate the person or persons specified in the
notice; (iii) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder, (iv) such other information regarding each nominee proposed by
such stockholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission had the
nominee been nominated, or intended to be nominated, by the Board; and (v) the
consent of each nominee to serve as a director of the Corporation if so elected.
In addition, the stockholder making such nomination shall promptly provide any
other information reasonably requested by the Corporation. Notwithstanding the
foregoing provisions of this Section 9 of Article II, in the event that the
number of directors to be elected to the Board is increased and there is no
public announcement naming either all of the nominees for director or specifying
the size of the increased Board made by the Corporation at least 100 days in
advance of such
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meeting, a stockholder's notice required by this Section 9 of Article II
shall be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary
of the Corporation not later than the tenth day following the day on which
such public announcement is first made by the Corporation. No person shall be
eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 9 of Article II. The
chairman of any meeting of stockholders shall have the power and the duty to
determine whether a nomination has been made in accordance with the procedure
set forth in this Section 9 of Article II and shall direct that any
nomination not made in accordance with these procedures be disregarded.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. The business and affairs of the Corporation shall be managed by
or under direction of the Board of Directors. The directors shall elect one of
their members to be Chairman of the Board, who shall perform such duties as are
provided in these By-Laws or are from time to time assigned by the Board. The
Chairman of the Board may, but need not, be an officer of the Corporation.
SECTION 2. Regular meetings of the Board of Directors shall be held on such
dates and at such times and such places, within or without the State of
Delaware, as shall be fixed from time to time by the Board.
SECTION 3. Special meetings of the Board of Directors may be called by the
Chairman of the Board and shall be called by the Chairman of the Board or the
Secretary upon a request in writing by any four directors. Notice shall be given
of the date, time and place of each special meeting (i) by mailing the same at
least three days
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before the meeting to each director via first-class mail, (ii) by telephone,
facsimile transmission or personal delivery of the same at least 24 hours
before the meeting to each director or (iii) by sending the same at least two
days before the meeting to each director via overnight courier for next-day
delivery. Except as otherwise specified in the notice thereof, or as required
by statute, any and all business may be transacted at any special meeting of
the Board of Directors.
SECTION 4. The Chairman of the Board shall preside at all meetings of the
Board of Directors; and in his absence, the Board of Directors may appoint any
other person to act as chairman of the meeting. Less than a quorum of the Board
may adjourn any meeting from time to time until a quorum shall be present,
whereupon the meeting may be held, as adjourned, without further notice.
SECTION 5. With the consent of the Chairman or a majority of the Board of
Directors, any director may participate in a meeting of the Board of Directors
by telephone, and a meeting of the Board of Directors may be conducted entirely
by telephone, provided that all of the directors can speak and hear one another.
ARTICLE IV
COMMITTEES
SECTION 1. The Board of Directors may, by resolution passed by a majority
of the whole Board, designate from among its own members such committees as the
Board may determine. Each such committee shall have such powers of the Board of
Directors, not prohibited by statute, as the Board shall from time to time
authorize.
SECTION 2. A majority of a committee shall constitute a quorum for the
transaction of business. Each committee shall keep regular minutes of its
meetings and shall report the same to the Board of Directors when requested. The
Board of Directors
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may discharge any committee or any member thereof either with
or without cause at any time.
ARTICLE V
OFFICERS
SECTION 1. The Board of Directors shall elect the following officers: Chief
Executive Officer, President, one or more Vice Presidents, Treasurer and
Secretary and such other officers as it may from time to time determine.
SECTION 2. The term of office of all officers shall be for one year and
until their respective successors are elected and qualified. The Board of
Directors may remove any officer either with or without cause at any time.
SECTION 3. The Chief Executive shall be the chief executive officer of the
Corporation and shall have such powers and duties as generally pertain to the
responsibilities of chief executive officer, including the management of the
business and affairs of the Corporation, subject only to the Board of Directors.
The President, (if he is not the Chief Executive Officer) subject and reporting
to the Chief Executive Officer, shall be the chief operating officer of the
Corporation, and shall have such powers and duties as generally pertain to the
responsibilities of chief operating officer as may be determined from time to
time by the Chief Executive Officer. The other officers of the Corporation,
subject and reporting to the Chief Executive Officer and/or the President, as
determined from time to time by the Chief Executive Officer, shall each have
such powers and duties as generally pertain to their respective offices. Any
officer of the Corporation shall in addition have such powers and duties as may
be conferred by the Board of Directors.
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SECTION 4. Unless otherwise ordered by the Board of Directors, the Chief
Executive Officer and any other officer whom he may designate shall have full
power and authority on behalf of the Corporation to attend and to vote at any
meetings of stockholders of any corporation in which this Corporation may hold
stock, and may exercise on behalf of this Corporation any and all of the rights
and powers incident to the ownership of such stock at any such meeting, and
shall have power and authority to execute and deliver proxies, waivers and
consents on behalf of the Corporation in connection with the exercise by the
Corporation of the rights and powers incident to the ownership of such stock.
The Board of Directors may from time to time confer like powers upon any other
person or persons.
ARTICLE VI
CAPITAL STOCK
SECTION 1. Certificates for stock of the Corporation shall be in such form
as the Board of Directors may from time to time prescribe.
SECTION 2. The Board of Directors shall have power to appoint one or more
transfer agents and/or registrars for the transfer and/or registration of
certificates for shares of stock of any class or series and may require that
stock certificates shall be countersigned and/or registered by one or more of
such transfer agents and/or registrars.
SECTION 3. Shares of capital stock of the Corporation shall be transferable
on the books of the Corporation only by the holder of record thereof in person
or by his duly authorized attorney, upon surrender and cancellation of
certificates for a like number of shares, with an assignment or power of
transfer endorsed thereon or delivered therewith, duly executed, and with such
proof of the authenticity of the
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signature and of authority to transfer, and of payment of transfer taxes, as
the Corporation or its agents may require.
SECTION 4. In case any certificate for the capital stock of the Corporation
shall be lost, stolen or destroyed, the Corporation may require such proof of
the fact and such indemnity to be given to it and/or to its transfer agent
and/or registrar, if any, as it shall deem necessary or advisable.
SECTION 5. The Corporation shall be entitled to treat the holder of record
of any share or shares of stock as the holder thereof in fact, and shall not be
bound to recognize any equitable or other claim to or interest in such shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise expressly provided by law.
ARTICLE VII
MISCELLANEOUS
SECTION 1. The seal of the Corporation shall be circular in form and shall
contain the name of the Corporation and the year and state of incorporation.
SECTION 2. The Board of Directors shall have the power to fix, and from
time to time to change, the fiscal year of the Corporation.
ARTICLE VIII
AMENDMENT
The Board of Directors shall have the power to adopt, alter and repeal
By-Laws of the Corporation at any regular or special meeting of the Board,
subject to the power of the stockholders to alter or repeal any By-Law adopted
or altered by the Board of Directors. By-Laws may be adopted, altered or
repealed by the stockholders by the vote of the holders of 75% or more of the
outstanding shares entitled to vote thereon
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provided that notice of the proposed adoption, alteration or repeal shall
have been given in the notice of such meeting of stockholders.
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