Exhibit 3.2
BY-LAWS
OF
VOIVE DIARY INC.
ARTICLE I
OFFICES
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Section 1. The registered office of the Corporation will be in the City
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of Wilmington, County of New Castle State of Delaware.
Section 2. The Corporation may also have offices at such other
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places within or outside of 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
MEETING OF STOCKHOLDERS
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Section 1. All meetings of stockholders will be held at the registered
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office of the Corporation, or at such other place within or outside of the State
of Delaware as may be fixed from time to time by the Board of Directors.
Section 2. Commencing with the year 2002, annual Meetings of Stockholders
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will be held on the last business day of October of each year, or if that is a
legal holiday, on the next following business day, at 10 A.M., or at such other
date and time as may be fixed by the Board of Directors. At each annual meeting
of stockholders the stockholders will elect directors and transact such other
business as may properly be brought before the meeting.
Section 3. Special meetings of stockholders may be called at any time
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for any purpose or purposes by the Board of Directors or by the President, and
must be called by the President or the Secretary upon the written request of a
majority of the directors or upon the written request of the holders of at least
50% of all the outstanding shares entitled to vote on the action proposed to be
taken. Each written request must state the time, place and purpose or purposes
of the proposed meeting. A special meeting of stockholders called by the Board
of Directors or the President, other than one required to be called by reason of
a written request of stockholders, may be cancelled by the Board of Directors at
any time not less than 24 hours before the scheduled commencement of the
meeting.
Section 4. Written notice of each annual or special meeting of stockholders,
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stating the date, time and place of the meeting and the matters to be voted upon
at it, must be given in the manner set forth in Article VI of these By-Laws not
less than ten nor more than sixty days before the date of the meeting, to each
stockholder entitled to vote at the meeting.
Section 5. Except as otherwise required by law or the Certificate of
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Incorporation, the presence in person or by proxy of holders of at least
one-third (1/3) of the shares entitled to vote at a meeting of stockholders will
be necessary, and will constitute a quorum, for the transaction of business at
such meeting. If a quorum is not present or represented by proxy at any meeting
of stockholders, the holders of a majority of the shares entitled to vote at the
meeting who are present in person or represented by proxy may adjourn the
meeting from time to time until a quorum is present. An adjourned meeting may
be held later without notice other than announcement at the meeting, except that
if the adjournment is for more than thirty days, or if after the adjournment a
new record date is fixed for the adjourned meeting, notice of the adjourned
meeting must be given in the manner set forth in Article VI to each stockholder
of record entitled to vote at the adjourned meeting.
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Section 6. At any meeting of stockholders each stockholder having the
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right to vote may vote in person or by proxy. Except as otherwise provided by
law or in the Certificate of Incorporation, each stockholder will be entitled to
one vote for each share of stock entitled to vote standing in his name on the
books of the Corporation. All elections will be determined by plurality votes.
Except as otherwise provided by law or in the Certificate of Incorporation or
By-Laws, any other matter will be determined by the vote of a majority of the
shares which are voted with regard to it.
Section 7. Whenever the vote of stockholders at a meeting is required or
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permitted in connection with any corporate action, the meeting and vote may be
dispensed with if the action taken has the written consent of the holders of
shares having at least the minimum number of votes required to authorize the
action at a meeting at which all shares entitled to vote were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent shall be given to those stockholders who have not
consented in writing and, who, if the action had been taken at a meeting, would
have been entitled to notice of the meeting.
ARTICLE III
DIRECTORS
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Section 1. The Board of Directors will manage the business of the
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Corporation, except as otherwise provided by law, the Certificate of
Incorporation or these By-Laws.
Section 2. The number of directors which will constitute the entire Board of
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Directors will be such number as is determined by the Board of Directors from
time to time. Until further action by the Board of Directors, the number of
directors which will constitute the entire Board of Directors will be one. As
used in these By-Laws, the term "entire Board of Directors" means the total
number of directors which the Corporation would have if there were no vacancies.
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Section 3. Except as provided in Section 5 of this Article, the
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directors will be elected at each annual meeting of stockholders. Except as
otherwise provided by law, the Certificate of Incorporation, or these By-Laws,
each director elected will serve until the next succeeding annual meeting of
stockholders and until his successor is elected and qualified.
Section 4. Any of the directors may be removed for cause by vote of a
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majority of the entire Board. Any or all of the directors may be removed for
cause or without cause by vote of the holders of a majority of the outstanding
shares of each class of voting stock of the Corporation voting as a class.
Section 5. Newly created directorships resulting from an increase in the
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number of directors and vacancies occurring in the Board may be filled by vote
of a majority of the directors then in office, even if less than a quorum
exists. A director elected to fill a vacancy, including a vacancy created by a
newly created directorship, will serve until the next succeeding annual meeting
of stockholders and until his successor is elected and qualified.
Section 6. The books of the Corporation, except as such as are required by
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law to be kept within the State of Delaware, may be kept at such place or places
within or outside of the State of Delaware as the Board of Directors may from
time to time determine.
Section 7. The Board of Directors, by the affirmative vote of a majority of
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the directors then in office, and irrespective of any personal interest of any
of its members, may establish reasonable compensation of any or all directors
for services to the Corporation as directors or officers or otherwise.
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ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
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Section 1. The first meeting of each newly elected Board of Directors
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will be held immediately following the annual meeting of the stockholders. If
the meeting is held at the place of the meeting of stockholders, no notice of
the meeting need be given to the newly elected directors. If the first meeting
is not held at that time and place, it will be held at a time and place
specified in a notice given in the manner provided for notice of special
meetings of the Board of Directors.
Section 2. Regular meetings of the Board of Directors may be held upon such
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notice, or without notice, at such times and at such places within or outside of
the State of Delaware, as is determined from time to time by the Board of
Directors.
Section 3. Special meetings of the Board of Directors may be called by the
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Chairman of the Board, if there is one, or by the President, on at least two
days' notice to each director and must be called by the President or the
Secretary on like notice at the written request of any two directors.
Section 4. Whenever notice of a meeting of the Board of Directors is
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required, the notice must be given in the manner set forth in Article VI of
these By-Laws and must state the place, date and hour of the meeting. Except as
provided by law, the Certificate of Incorporation, or other provisions of these
By-Laws, neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of the meeting.
Section 5. Except as otherwise required by law or the Certificate of
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Incorporation or other provisions of these By-Laws, a majority of the directors
in office, but in no event less than one-third of the entire Board of Directors,
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will constitute a quorum for the transaction of business, and the vote of a
majority of the directors present at any meeting at which a quorum is present
will be the act of the Board of Directors. If a quorum is not present at any
meeting of directors, a majority of the directors present at the meeting may
adjourn the meeting from time to time, without notice of the adjourned meeting
other than announcement at the meeting. To the extent permitted by law, a
director participating in a meeting by conference telephone or similar
communications equipment by which all persons participating in the meeting can
hear each other will be deemed present in person at the meeting and all acts
taken by him during his participation will be deemed taken at the meeting.
Section 6. Any action of the Board of Directors may be taken without a
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meeting if written consent to the action signed by all members of the Board of
Directors is filed with the minutes of the Board of Directors.
ARTICLE V
COMMITTEES
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Section 1. The Board of Directors may designate from among its members
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an Executive Committee and other committees, each consisting of two or more
directors, and may also designate one or more of its members to serve as
alternates on these committees. To the extent permitted by law, the Executive
Committee will have all the authority of the Board of Directors, except as the
Board otherwise provides, and other committees will have such authority as the
Board grants them. The Board of Directors will have power at any time to change
the membership of any committees, to fill vacancies in their membership and to
discharge any committees. All resolutions establishing or discharging
committees, designating or changing members of committees, or granting or
limiting authority of committees, may be adopted only by the affirmative vote of
a majority of the entire Board of Directors.
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Section 2. Each committee must keep regular minutes of its proceedings
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and report to the Board of Directors as and when the Board requires. Unless the
Board otherwise provides, a majority of the members of any committee may
determine its actions and the procedures to be followed at its meetings (which
may include a procedure for participating in meetings by conference telephone or
similar communications equipment by which all persons participating in the
meeting can hear each other), and may fix the time and place of its meetings.
Section 3. Any action of a committee may be taken without a meeting if
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written consent to the action signed by all the members of the committee is
filed with the minutes of the committee.
ARTICLE VI
NOTICES
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Section 1. Any notice to a stockholder may be given personally or by
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mail. If mailed, a notice will be deemed given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his address as it
appears on the records of stockholders.
Section 2. Any notice to a director may be given personally, by telephone or
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by mail, facsimile transmission, telex, telegram, cable or similar
instrumentality. A notice will be deemed given when actually given in person or
by telephone, when received if given by facsimile transmission or telex, on the
third business day after the day when deposited in the United States mail,
postage prepaid, or on the day when delivered to a cable or similar
communications company, directed to the director at his business address or at
such other address as the director may have designated to the Secretary in
writing as the address to which notices should be sent.
Section 3. Any person may waive notice of any meeting by signing a written
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waiver, whether before or after the meeting. In addition, attendance at a
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meeting will be deemed a waiver of notice unless the person attends for the
purpose, expressed to the meeting at its commencement, of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE VII
OFFICERS
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Section 1. The officers of the Corporation will be a President, a
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Secretary and a Treasurer, and the Board of Directors may also elect a Chairman
of the Board, a Vice Chairman of the Board, one or more Vice Presidents (one or
more of whom may be designated an Executive Vice President or a Senior Vice
President), one of more Assistant Secretaries or Assistant Treasurers, and such
other officers as it may from time to time deem advisable. Any two or more
offices, except the offices of President and Secretary, may be held by the same
person. No officer except the Chairman of the Board need be a director of the
Corporation.
Section 2. Each officer will be elected by the Board of Directors and will
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hold office for such term, if any, as the Board of Directors shall determine.
Any officer may be removed at any time, either with or without cause, by the
vote of a majority of the entire Board of Directors.
Section 3. The compensation of officers will be fixed by the Board of
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Directors or in such manner as it may provide.
Section 4. The Chairman of the Board, if any, shall preside at all meetings
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of the stockholders and of the Board of Directors and shall have such other
duties as from time too time may be assigned to him by the Board of Directors.
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Section 5. The President will be the Chief Executive Officer of the
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Corporation, will have general charge of management of the business and affairs
of the Corporation, subject to the control of the Board of Directors, and will
see that all orders and resolutions of the Board of Directors are carried into
effect. The President will preside over any meeting of the stockholders or the
Board of Directors at which neither the Chairman of the Board nor a Vice
Chairman of the Board is present.
Section 6. The officers of the Corporation, other than the Chairman of the
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Board and the President, will have such powers and perform such duties in the
management of the property and affairs of the Corporation, subject to the
control of the Board of Directors and the President, as generally pertain to
their respective offices, as well as such powers and duties as from time to time
may be prescribed by the Board of Directors.
ARTICLE VIII
CERTIFICATES FOR SHARES
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Section 1. The shares of stock of the Corporation will be represented
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by certificates, in such form as the Board of Directors may from time to time
prescribe, signed by the President or Vice-President and by the Treasurer of an
Assistant Treasurer, or the Secretary or an Assistant Secretary.
Section 2. Any or all signatures upon a certificate may be a facsimile.
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Even if an officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate ceases to be that
officer, transfer agent or registrar before the certificate is issued, that
certificate may be issued by the Corporation with the same effect as if he or it
were that officer, transfer agent or registrar at the date of issue.
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Section 3. The Board of Directors may direct that a new certificate be
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issued in place of any certificate issued by the Corporation which is alleged to
have been lost, stolen or destroyed. When doing so, the Board of Directors may
prescribe such terms and conditions precedent to the issuance of the new
certificate as it deems expedient, and may require a bond sufficient to
indemnify the Corporation against any claim that may be made against it with
regard to the allegedly lost, stolen or destroyed certificate or the issuance of
the new certificate.
Section 4. The Corporation or a transfer agent of the Corporation, upon
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surrender to it of a certificate representing shares, duly endorsed or
accompanied by proper evidence of lawful succession, assignment or authority to
transfer, shall issue a new certificate to the person entitled to it, and shall
cancel the old certificate and record the transaction upon the books of the
Corporation.
Section 5. The Board of Directors may fix in advance a date as the record
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date for determination of the stockholders entitled to notice of or to vote at
any meeting of stockholders, or to express consent to, or dissent from, any
proposal without a meeting, or to receive payment of any dividend or allotment
of any rights, or to take or be the subject of any other action. That date must
be not less than ten nor more than sixty days before the date of the meeting,
nor more than sixty days prior to any other action. If no record date is fixed,
the record date will be as provided by law. A determination of stock holders
entitled to notice of or to vote at any meeting of stockholders which has been
made as provided in this Section will apply to any adjournment of the meeting,
unless the Board of Directors fixes a new record date for the adjourned meeting.
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Section 6. The Corporation will for all purposes be entitled to treat a
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person registered on its books as the owner of shares as the owner of those
shares, with the exclusive right, among other things, to receive dividends and
to vote with regard to those shares, and the Corporation will not be bound to
recognize any equitable or other claim to or interest in shares of its stock on
the part of any other person, whether or not the Corporation has notice of the
claim or interest of the other person, except as otherwise provided by the laws
of Delaware.
ARTICLE IX
INDEMNIFICATION
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Section 1. The Corporation shall indemnify any person who was or is
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made a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that the person 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, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonable
incurred by him in connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe the conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
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equivalent, will not, of itself, create a presumption that the person did not
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act in good faith and in a manner which the person reasonably believed to be in
or not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, had reasonable cause to believe that the conduct
was unlawful.
Section 2. The Corporation shall indemnify any person who was or is a
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party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that the person 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, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the Corporation, except that no
indemnification shall be made in respect of any claim, issue or manner as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Delaware Court of Chancery or the court
in which such action or such suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 3. To the extent that a director, officer, employee or agent of the
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Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article, or
in defense of any claim, issue or matter therein, the person shall be
indemnified against expenses (including attorneys' fees) actually and reasonable
incurred by the person in connection therewith.
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Section 4. Any indemnification under Sections 1 and 2 of this Article
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(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or 2. Such determination
shall be made (1) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (2) if such a quorum is not obtainable, or, even if obtainable and a quorum
of disinterested directors so directs, by independent legal counsel (compensated
by the Corporation) in a written opinion, or (3) by the stockholders.
Section 5. Expenses incurred by an officer, director, employee or agent in
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defending a civil, criminal, administrative or investigative action, suit or
proceeding, or threat thereof, may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to repay
such amount if it shall ultimately be determined that the person is not entitled
to be indemnified by the Corporation as authorized in this Article.
Section 6. The indemnification and advancement of expenses provided by, or
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granted pursuant to, the other Sections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
Section 7. The indemnification and advancement of expenses provided by, or
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granted pursuant to, this Article shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
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Section 8. The Corporation may purchase and maintain insurance on
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behalf of any person who 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, partnership, joint
venture, trust or other enterprise against any liability asserted against the
person and incurred by him in any such capacity, or arising out of the person's
status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article.
Section 9. References in this Article to "the Corporation" will include, in
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addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger which,
if its separate existence had continued, would have had power and authority to
indemnify its directors, officers and employees or agents so that any person who
is or was a director, office, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, will stand in the same position under the
provisions of this Article with respect to the resulting or surviving
corporation as he would have with respect to the constituent corporation if its
separate existence had continued.
Section 10. For purposes of this Article, references to "other
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enterprises" will include employee benefit plans; references to "fines" will
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation" will
include any service as a director, officer, employee or agent of a subsidiary of
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the Corporation and any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan will be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article.
Section 11. The provisions of this Article will be deemed retroactive and
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will include all acts of the officers and directors of the Corporation since the
date of incorporation.
ARTICLE X
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GENERAL PROVISIONS
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Section 1. The corporate seal will have inscribed on it the name of the
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Corporation, the year of its creation, the words "CORPORATE SEAL DELAWARE," and
such other appropriate legend as the Board of Directors may from time to time
determine. Unless prohibited by the Board of Directors, a facsimile of the
corporate seal may be affixed or reproduced in lieu of the corporate seal
itself.
Section 2. The fiscal year of the Corporation will end on the 31st day of
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December of each year.
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ARTICLE XI
Amendments
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Section 1. These By-Laws may be amended or repealed, and new By-Laws
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may be adopted, amended or repealed (a) at any regular or special meeting of
stockholders, or (b) by the affirmative vote of a majority of the entire Board
at any regular or special meeting of the Board, except that no By-Law may be
adopted or amended by the Board of Directors if the By-Law or amendment is
inconsistent with a By-Law, or an amendment to a By-Law, adopted by
stockholders.
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