EXHIBIT 3.2
BY-LAWS
OF
ALLIANCE DISTRIBUTORS HOLDING INC.
(Effective October 25, 2004)
Article 1. Office
Section 1.1. Office. The office of the Corporation shall be located at
such address as the Board of Directors shall fix.
Article 2. Shareholder Meetings
Section 2.1. Place of Meetings. Meetings of shareholders may be held at
any place, either within or without the State of Delaware designated by
the Board of Directors.
Section 2.2. Annual Meeting. The annual meeting of shareholders for the
election of directors and the transaction of such other business as may
properly come before it shall be held on such date, and at such place, as
shall be fixed by the Board of Directors.
Section 2.3. Special Meetings. Shareholders are not permitted to call a
special meeting of shareholders or to require the Board of Directors or
officers of the Corporation to call such a special meeting. A special
meeting of shareholders may only be called by a majority of the Board of
Directors or by the Chairman or Chief Executive Officer. The business
permitted to be conducted at a special meeting of shareholders shall be
limited to matters properly brought before the meeting by or at the
direction of the Board of Directors.
Section 2.4. Quorum. The holders of a majority of the shares entitled to
vote thereat (whether present in person, by proxy or by voting agreement)
shall constitute a quorum at a meeting of shareholders for the transaction
of any business.
Section 2.5. Organization. Meetings of shareholders shall be presided over
by the Chairman, if any, or in his or her absence (or election not to
preside) by the Vice Chairman, if any, or in his or her absence (or
election not to preside) by the President, or in his or her absence (or
election not to preside) 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 (or election not to so act) the chairman of the meeting may
appoint any person to act as secretary of the meeting.
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Section 2.6. Conduct of Meetings. The Board of Directors may adopt such
rules and regulations for the conduct of the meeting of shareholders as it
shall deem appropriate. Except to the extent inconsistent with such rules
and regulations as adopted by the Board of Directors, the chairman of any
meeting of shareholders shall have the right and authority 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 chairman 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
shareholders 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. Unless and to the
extent determined by the Board of Directors or the chairman of the
meeting, meetings of shareholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 2.7. Nomination of Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors; provided, however, that the following procedures shall not
apply to the nomination of persons for election as directors by vote of
any class or series of preferred stock of the Corporation. Nominations of
persons for election to the Board of Directors of the Corporation at the
annual meeting may be made at such meeting by or at the direction of the
Board of Directors, by any committee appointed by the Board of Directors
or by any common shareholder 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 2.7. Such nominations, other than
those made by or at the direction of the Board of Directors or by any
committee appointed by the Board of Directors, shall be made pursuant to
timely notice in writing to the Secretary of the Corporation. To be
timely, a shareholder's notice must be delivered to or mailed and received
at the principal executive offices of the Corporation not less than 60
days nor more than 90 days prior to the meeting; provided, however, that
in the event that less than 70 days' notice or prior public disclosure of
the date of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be so received not later than the close of
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business on the fifteenth day following the day on which such notice of
the date of the meeting was mailed or such public disclosure was made,
whichever first occurs. Such shareholder's notice to the Secretary shall
set forth (a) as to each person whom the shareholder 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, series and number of shares
of capital stock of the Corporation which are beneficially owned by the
person and (v) any other information relating to the person that is
required to be disclosed in solicitations for proxies for election of
directors pursuant to the Rules and Regulations of the Securities and
Exchange Commission under Section 14 of the Securities Exchange Act of
1934, as amended; and (b) as to the shareholder giving the notice (i) the
name and record address of the shareholder, (ii) the class, series and
number of shares of capital stock of the Corporation which are
beneficially owned by the shareholder and (iii) a description of all
arrangements or understandings between the shareholder 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 shareholder.
Such notice shall be accompanied by the executed consent of each nominee
to serve as a director if so elected. 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 by the holders of
Common Stock of the Corporation unless nominated in accordance with the
procedures set forth herein.
The chairman of the Corporation presiding at an annual meeting shall, if
the facts warrant, determine that a nomination was not made in accordance
with the foregoing procedure and, if he or she should so determine, he or
she shall so declare to the meeting and the defective nomination shall be
disregarded.
Section 2.8. Advance Notification of Business to be Transacted at
Shareholder Meetings. To be properly brought before the annual or any
special meeting of shareholders, business must be either (a) specified in
the notice of meeting (or any supplement or amendment thereto) given by or
at the direction of the Board of Directors or any committee appointed by
the Board of Directors, (b) otherwise properly brought before the meeting
by or at the direction of the Board of Directors, or (c) otherwise
properly brought before an annual meeting by a shareholder. In addition to
any other applicable requirements, for business to be properly brought
before any annual meeting of shareholders by a shareholder, the
shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice must be
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delivered to or mailed and received at the principal executive offices of
the Corporation not less than 60 days nor more than 90 days prior to the
meeting; provided, however, that in the event that less than 70 days'
notice or prior public disclosure of the date of the meeting is given or
made to shareholders, notice by the shareholder to be timely must be so
received not later than the close of business on the fifteenth day
following the day on which such notice of the date of the meeting was
mailed or such public disclosure was made, whichever first occurs. Such
shareholder's notice to the Secretary shall set forth as to each matter
the shareholder proposes to bring before the meeting (i) a brief
description of the business desired to be brought before the meeting and
the reasons for conducting such business at the meeting, (ii) the name and
record address of the shareholder proposing such business, (iii) the
class, series and number of shares of capital stock of the Corporation
which are beneficially owned by the shareholder and (iv) any material
interest of the shareholder in such business .
No business shall be conducted at the annual or any special meeting of
shareholders unless it is properly brought before the meeting in
accordance with the procedures set forth in this Section 2.8, provided,
however, that nothing in this Section 2.8 shall be deemed to preclude
discussion by any shareholder of any business properly brought before the
meeting in accordance with the procedures set forth in this Section 2.8.
The chairman of the Corporation presiding at the meeting shall, if the
facts warrant, determine that business was not properly brought before the
meeting in accordance with the provisions of this Section 2.8 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 .
Section 2.9. Compliance with Securities and Exchange Act of 1934.
Notwithstanding any other provision of these By-laws, the Corporation
shall be under no obligation to include any shareholder proposal in its
proxy statement materials or otherwise present any such proposal to
shareholders at a special or annual meeting of shareholders if the Board
of Directors reasonably believes that the proponents thereof have not
complied with Sections 13 and 14 of the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder, and the
Corporation shall not be required to include in its proxy statement
material to shareholders any shareholder proposal not required to be
included in its proxy material to shareholders in accordance with such
Act, rules, or regulations.
Section 2.10. Ballots. The vote upon any question before any shareholders'
meeting need not be by ballot.
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Article 3. Directors
Section 3.1. Number of Directors. The number of directors which shall
constitute the entire Board shall be as set by the Board of Directors from
time to time. No reduction in the number of directors constituting the
entire Board of Directors shall have the effect of removing any director
before that director's term of office expires.
Section 3.2. Term. Each director, including a director elected to fill a
vacancy, shall hold office for a term that extends to the next annual
meeting of shareholders and until his successor has been elected and has
qualified .
Section 3.3. Quorum of Directors. At all meetings of the Board of
Directors, a majority of the entire Board shall be necessary and
sufficient to constitute a quorum for the transaction of business.
Section 3.4. Meetings. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be
determined by the Board of Directors. Special meetings of the Board of
Directors may be called by the Chairman, the Vice Chairman, the Chief
Executive Officer or the Secretary or by resolution of the Board of
Directors. Unless waived, notice of the time and place of special meetings
shall be delivered to each director either (i) personally (either orally
or in writing), (ii) by telephone, (iii) by telex, telecopy or other
facsimile transmission, (iv) by e-mail, or (v) by first-class mail,
postage prepaid, addressed to a director at that director's address as it
is shown on the records of the Corporation. If the notice is mailed, it
shall be deposited in the United States mail at least four days before the
time of the holding of the meeting (ten days in the case of a director
whose address as shown on the records of the Corporation is outside of the
United States of America). If the notice to a director is delivered in any
other manner it shall be delivered (which shall for this purpose mean
received by the director) at least 24 hours before the time of the holding
of the meeting. If a meeting is adjourned to another time or place, no
additional notice shall be required to be given with respect to such
adjourned meeting if the time and place of such adjourned meeting is
announced at the meeting at which the adjournment is taken .
Section 3.5. Organization. Meetings of the Board of Directors shall be
presided over by the Chairman, if any or in his or her absence by the Vice
Chairman, if any or in the absence of the foregoing persons by a chairman
chosen at the meeting.
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Section 3.6. Unanimous Written consent in Place of Meeting. An action
required or permitted to be taken by the Board or any committee thereof
may be taken without a meeting if all the members of the Board or
committee consent in writing or by electronic transmission to the adoption
of a resolution authorizing the action .
Section 3.7. Meetings by Conference Telephone or Similar Device. Any
meeting of the Board or a committee thereof may be conducted by means of a
conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at a
meeting .
Article 4. Officers
Section 4.1. Executive Officers. The executive officers of the Corporation
shall be a Chairman, a Chief Executive Officer, a Secretary, a Treasurer,
and such number of Vice Presidents, Assistant Secretaries and Assistant
Treasurers, and such other officers, if any, as the Board of Directors may
from time to time determine. Any officer may, but no officer need, be
chosen from among the Board of Directors.
Section 4.2. Power and Duty of Officers. The Chief Executive Officer of
the Corporation shall have such powers in the management of the
Corporation as may be prescribed in a resolution by the Board of Directors
and, to the extent not so provided, as generally pertain to such office.
The Chief Executive Officer shall see that all orders and resolutions of
the Board of Directors are carried into effect.
Section 4.3. The other officers of the Corporation shall have such powers
and duties in the management of the Corporation as may be prescribed in a
resolution by the Board of Directors or delegated to them by the Chief
Executive Officer and, to the extent not so provided or delegated, as
generally pertain to their respective offices, subject to the control of
the Board of Directors and the Chief Executive Officer. Without limiting
the foregoing, the Secretary shall have the duty to record the proceedings
of the meetings of the stockholders and directors in a book to be kept for
that purpose .
Article 5. Miscellaneous
Section 5.1. Waivers of Notice. Whenever any notice is required by law,
the Certificate of Incorporation or these By-laws, to be given to any
director, member of a committee or stockholder, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, and, in the case of a waiver of
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notice of a meeting, whether or not the business to be transacted at or
the purposes of such meeting is set forth in such waiver, shall be deemed
equivalent thereto. The attendance of any person at any meeting, in person
or, in the case of the meeting of stockholders, by proxy, shall constitute
a waiver of notice of such meeting except where such person attends such
meeting for the express purpose of objecting at the beginning of such
meeting to the transaction of any business on the grounds that such
meeting is not duly called or convened .
Section 5.2. Fiscal Year. The fiscal year of the Corporation shall be
fixed from time to time by the Board of Directors .
Section 5.3. Seal. The corporate seal shall have inscribed thereon the
name of the Corporation and shall be in such form as may be approved from
time to time by the Board of Directors.
Section 5.4. Indemnification of Directors and Officers. The Corporation
shall indemnify its directors and officers to the fullest extent permitted
by law, or as otherwise set forth in an Indemnification Agreement entered
into between the Corporation and an officer or director.
Section 5.5. Entire Board. As used in these By-Laws, "entire Board of
Directors" means the total number of directors which the Corporation would
have if there were no vacancies in the Board of Directors .
Section 5.6. Section Headings. The headings of the Articles and Sections
of these By-Laws are inserted for convenience of reference only and shall
not be deemed to be part thereof or used in the construction or
interpretation thereof.
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