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EXHIBIT 3.2
AMENDED AND RESTATED BYLAWS
OF
CATALOG.COM, INC.
ARTICLE I
OFFICES
SECTION 1.1. REGISTERED OFFICE. The registered office of Catalog.com, Inc.
(the "Corporation") shall be in the State of Oklahoma, at 14000 Quail Springs
Parkway, Suite 3600, Oklahoma City, Oklahoma County, Oklahoma 73134.
SECTION 1.2. OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Oklahoma as the Board of
Directors may from time to time determine as the business of the Corporation may
require.
ARTICLE II
SHAREHOLDERS
SECTION 2.1. ANNUAL MEETING. An annual meeting of shareholders for the
purpose of electing directors and of transacting such other business as may come
before it shall be held each year at such date, time, and place, either within
or without the State of Oklahoma, as may be specified by the Board of Directors.
SECTION 2.2. SPECIAL MEETINGS. In addition to such special meetings as are
provided by law or the Corporation's Certificate of Incorporation, special
meetings of shareholders for any purpose or purposes may be held at such time
and place either within or without the State of Oklahoma as may be stated in the
notice (as described herein at Section 2.3) and may be called only by the
Chairman of the Board of Directors, or if one has not been designated by the
Chief Executive Officer and shall be called within ten (10) days after receipt
of the written request of the Board of Directors, pursuant to a resolution
approved by a majority of the whole Board of Directors.
SECTION 2.3. NOTICE OF MEETINGS. (a) Unless waived, a notice of each annual
or special meeting, stating the date, hour and place and the purpose or purposes
for which the meeting is called, shall be given to each shareholder of record
entitled to vote or entitled to notice, not more than sixty (60) days nor less
than ten (10) days before the date of any such meeting, unless a different
period is proscribed by law. If mailed, such notice shall be directed to a
shareholder at his or her address as the same appears on the records of the
Corporation. If a meeting is adjourned to another time or place and such
adjournment is for thirty (30) days or less and no new record date is fixed for
the adjourned meeting, no further notice as to such adjourned meeting need be
given if the time and place to which it is adjourned are fixed and announced at
such meeting. In the event of a transfer of shares after notice has been given
and prior to the holding of the meeting, it shall not be necessary to serve
notice on the transferee. If the adjournment is for more than thirty (30) days,
or after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each shareholder of record
entitled to vote at the meeting.
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(b) A written waiver of any such notice signed by the person entitled
thereto, whether before or after the time stated therein, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends the meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Business transacted at any special meeting of shareholders shall be
limited to the purposes stated in the notice.
SECTION 2.4. LIST OF SHAREHOLDERS. The officer who has charge of the
stock ledger of Corporation shall prepare and make available, at least ten (10)
days before every meeting of shareholders, a complete list of the shareholders
entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each shareholder and the number of shares registered in the name of
each shareholder. Such list shall be open to the examination of any
shareholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least ten (10) days prior to the meeting, either at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at
the time and place of the meeting during the whole time thereof, and may be
inspected by any shareholder who is present. The Corporation's original stock
transfer book shall be prima facie evidence as to who are the stockholders
entitled to examine such list or transfer books or to vote at any meetings of
shareholders.
SECTION 2.5. QUORUM. Except as otherwise provided by law or in the
Certificate of Incorporation or these Bylaws, at any meeting of shareholders,
the holders of a majority of shares issued and outstanding of each class
entitled to vote, shall be present or represented by proxy in order to
constitute a quorum for the transaction of business. If, however, such quorum
shall not be present or represented at any meeting of the shareholders, a
majority in voting interest of the shareholders present in person or represented
by proxy, or, in the absence of a decision by the majority, any officer entitled
to preside at such meeting, shall have power to adjourn the meeting from time to
time, without notice other than an announcement at the meeting of the time and
place of the adjourned meeting, until a quorum shall be present or represented.
At any such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty (30) days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each shareholder of record entitled to
vote at the meeting.
SECTION 2.6. ORGANIZATION. The Chairman of the Board, if any, or, in his
absence, the Chief Executive Officer, or, in their absence, the President, shall
call to order meetings of shareholders and shall act as Chairman of such
meetings. The Board of Directors or, if the Board fails to act, the
shareholders may appoint any shareholder, director, or officer of the
Corporation to act as Chairman of any meeting in the absence of the Chairman of
the Board, the Chief Executive Officer, or the President. The Secretary of the
Corporation, or, if the Secretary of the Corporation not be present, the
Assistant Secretary, or if the Secretary and the Assistant Secretary not be
present, any person whom the Chairman of the meeting shall appoint, shall act as
Secretary of the meeting.
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SECTION 2.7. ORDER OF BUSINESS AND PROCEDURE. The order of business at
all meetings of the shareholders and all matters relating to the manner of
conducting the meeting shall be determined by the Chairman of the meeting.
Meetings shall be conducted in a manner designed to accomplish the business of
the meeting in a prompt and orderly fashion and to be fair and equitable to all
shareholders, but it shall not be necessary to follow any manual of
parliamentary procedure.
SECTION 2.8. VOTING. Except for the election of directors, at any meeting
duly called and held at which a quorum is present, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any questions brought before such meeting, unless the
question is one upon which by express provision of law or of the Certificate of
Incorporation or these Bylaws, a greater vote is required in which case such
express provision shall govern and control the decision of such question. At
any meeting duly called and held for the election of directors at which a quorum
is present, directors shall be elected by a plurality of the votes cast by the
holders (acting as such) of shares of stock of the Corporation entitled to elect
such directors. The right to cumulate votes in the election of directors shall
be expressly prohibited.
SECTION 2.9. INSPECTORS. The Board of Directors in advance of any
shareholders' meeting may appoint one or more inspectors to act at the meeting
or any adjournment thereof. If inspectors are not so appointed, the person
presiding at a shareholders' meeting may, and on the request of any shareholder
entitled to vote thereat shall, appoint one or more inspectors. In case any
person appointed as inspector fails to appear or act, the vacancy may be filled
by the Board of Directors in advance of the meeting or at the meeting by the
person present thereat. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to discharge the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability.
SECTION 2.10. PROXIES. Unless otherwise provided in the Certificate of
Incorporation, each shareholder shall at every meeting of the shareholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such shareholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period.
A duly executed proxy shall be irrevocable if it states that it is irrevocable
and if, and only so long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder's attendance at any meeting shall
not have the effect of revoking a previously granted proxy unless such
stockholder shall in writing so notify the Secretary of the meeting prior to the
voting of the proxy. Without limiting the manner in which a stockholder may
authorize another person or persons to act for him as proxy, the following are
valid means of granting such authority. A stockholder may execute a writing
authorizing another person or persons to act for him as proxy. Execution may be
accomplished by the stockholder or his 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. A stockholder may also authorize another person or persons to act
for him as proxy by transmitting or authorizing the transmission of a telecopy,
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
telecopy, telegram, cablegram or other means of electronic transmission must
either set forth or
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be submitted with information from which it can be determined that the telecopy,
telegram, cablegram or other electronic transmission was authorized by the
stockholder. If it is determined that such telecopies, telegrams, cablegrams or
other electronic transmission are valid, the inspectors or, if there are no
inspectors, such other persons making that determination shall specify the
information upon which they relied. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this section may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the writing or transmission
could be used, provided that such copy, facsimile telecommunications or other
reproduction shall be a complete reproduction of the entire original writing or
transmission.
SECTION 2.11. NO ACTION BY CONSENT. No action that is required or
permitted to be taken by shareholders of the Corporation at any annual or
special meeting of shareholders may be effected by written consent of
shareholders in lieu of a meeting of shareholders, unless the action to be
effected by written consent of shareholders and the taking of such action by
such written consent have expressly been approved in advance by the Board of
Directors. Except as otherwise provided herein, no action shall be taken by
shareholders except at an annual or special meeting of shareholders.
SECTION 2.12. ADVANCE NOTICE OF SHAREHOLDERS' PROPOSALS. (a) At an annual
or special meeting of the shareholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before a meeting, business must be (i) specified in the notice of meeting (or
any supplement thereto) given by or at the direction of the Board of Directors,
(ii) brought before the meeting by or at the direction of the Board of
Directors, (iii) properly brought before an annual meeting by a shareholder or
(iv) if, and only if, the notice of a special meeting provides for business to
be brought before the meeting by shareholders, properly brought before the
meeting by a shareholder. For business to be properly brought before the
meeting 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 delivered to or mailed by first class United States mail, postage
prepaid, and received at the principal executive offices of the Corporation not
less than fifty (50) days prior to the meeting; provided, however, that in the
event less than fifty-five (55) 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 no later than the tenth day following the day
on which such notice of the date of the meeting was mailed or such disclosure
was made, but not less than five (5) days prior to the meeting.
(b) A shareholder's notice to submit business to a meeting of shareholders
shall set forth (i) the name and address, as they appear on the Corporation's
books, of the shareholder proposing such business, (ii) the class and number of
shares of the Corporation which are beneficially owned by the shareholder, (iii)
a representation that the shareholder intends to appear at the meeting in person
or by proxy to submit the business specified in such notice, (iv) any material
interest of the shareholder in such business, and (v) a brief description of the
business desired to be brought before the meeting and the reasons for conducting
such business at the meeting, including the complete text of any resolutions to
be presented at the annual meeting, and the reasons for conducting such business
at the meeting. In addition, the shareholder making such proposal shall
promptly provide any other information reasonably requested by the Corporation.
Notwithstanding anything in the Bylaws to the contrary, no business shall be
conducted at a
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meeting except in accordance with the procedures set forth in this Section 2.12.
The Chairman of a meeting shall, if the facts warrant, determine that business
was not properly brought before the meeting and in accordance with the
provisions of this Section 2.12, and, if he should so determine, he shall so
declare to the meeting and any such business not properly brought before the
meeting shall not be transacted.
(c) In addition to the information required above to be given by a
shareholder who intends to submit business to a meeting of shareholders, if the
business to be submitted is the nomination of a person or persons for election
to the Board of Directors then such shareholder's notice must also set forth, as
to each person whom the shareholder proposes to nominate for election as a
director, (i) the name, age, business address and, if known, residence address
of such person, (ii) the principal occupation or employment of such person,
(iii) the class and number of shares of stock of the Corporation which are
beneficially owned by such person, (iv) any other information relating to such
person that is required to be disclosed in solicitations of proxies for election
of directors or is otherwise required by the rules and regulations of the
Securities and Exchange Commission promulgated under the Securities Exchange Act
of 1934, as amended, (v) the written consent of such person to be named in the
proxy statement as a nominee and to serve as a director if elected and (vi) a
description of all arrangements or understandings between such 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 such
shareholder. Nominations other than those made by the Board of Directors or its
designated committee must comply with the procedures set forth in this Section
2.12, and no person nominated by a shareholder shall be eligible for election as
a director unless nominated in accordance with the terms of this Section 2.12.
The Chairman of a meeting shall, if the facts warrant, determine that a
nomination was not properly made in accordance with the foregoing procedures of
this Section 2.12 and, if he should so determine, he shall so declare to the
meeting and the defective nomination disregarded.
(d) Notwithstanding the foregoing provisions of this Section 2.12, a
shareholder who seeks to have any proposal included in the Corporation's proxy
statement shall comply with the requirements of Regulation 14A under the
Securities Exchange Act of 1934, as amended.
ARTICLE III
DIRECTORS
SECTION 3.1. GENERAL POWERS OF BOARD. The business of the Corporation
shall be managed by or under the direction of its Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the shareholders.
SECTION 3.2. NUMBER OF DIRECTORS AND TERM OF OFFICE. The Board of
Directors shall consist of at least three (3) and not more than thirteen (13)
directors; provided, however, that the Board of Directors, by resolution adopted
by vote of a majority of the then authorized number of directors, may increase
or decrease the number of directors within such minimum and maximum limitations.
The Board of Directors shall be divided into three classes, as nearly equal in
number as reasonably possible, with the terms of office of the first class to
expire at the 2001 annual meeting of shareholders, the term of office of the
second class to expire
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at the 2002 annual meeting of shareholders and the term of office of the third
class to expire at the 2003 annual meeting of shareholders. At each annual
meeting of shareholders following such initial classification and election,
directors elected to succeed those directors whose terms expire shall be elected
for a term of office to expire at the third succeeding annual meeting of
shareholders after their election. Directors need not be shareholders nor
residents of the United States or the State of Oklahoma.
SECTION 3.3. ELECTION OF DIRECTORS. The directors shall be elected by the
holders of shares entitled to vote thereon at the annual meeting of
shareholders, and each shall serve as provided herein and until his respective
successor has been elected and qualified. At each meeting of the shareholders
for the election of directors, the persons receiving the greatest number of
votes shall be the directors.
SECTION 3.4. NOMINATIONS OF DIRECTORS. Nomination of persons for election
to the Board of Directors may be made by the Board of Directors or any committee
designated by the Board of Directors or by any shareholder entitled to vote for
the election of directors at the applicable meeting of shareholders. Such
nominations, if not made by the Board of Directors, shall be made by timely
notice in writing to the Secretary of the Corporation and comply with the
provisions of Section 2.12.
SECTION 3.5. CHAIRMAN OF THE BOARD. The Board of Directors may elect one
of their members to be Chairman of the Board. The Chairman of the Board shall
be subject to the control of and may be removed by the Board of Directors. If
he is present, the Chairman of the Board shall preside at all meetings of the
Board of Directors and of the shareholders, and he shall have and perform such
other duties as from time to time may be assigned to him by the Board of
Directors.
SECTION 3.6. RESIGNATIONS. Any director of the Corporation may resign at
any time by giving written notice to the Chairman of the Board, if any, or the
Secretary of the Corporation. Such resignation shall take effect at the time
specified therein, and, unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
SECTION 3.7. VACANCIES. In the event that any vacancy shall occur in the
Board of Directors, whether because of death, resignation, removal, newly
created directorships resulting from any increase in the authorized number of
directors, the failure of the shareholders to elect the whole authorized number
of directors, or any other reason, such vacancy may be filled by the vote of a
majority of the directors then in office, although less than a quorum, or by a
sole remaining director, and the directors so chosen shall hold office for the
remainder of the full term of the class in which the vacancy occurred or until
their successors are duly elected and shall qualify, unless sooner displaced. If
there are no directors in office, then an election of directors may be held in
the manner provided by statute.
SECTION 3.8. REMOVAL OF DIRECTORS. Any director may be removed at any
annual or special shareholders' meeting only for cause and shall receive a copy
of the notice of such meeting, delivered to him personally or by mail at his
last known address at least ten (10) days prior to the date of the shareholders'
meeting.
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SECTION 3.9. REGULAR MEETINGS. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Oklahoma. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as shall from time to time be determined
by the Board of Directors. After such determination and notice thereof has been
once given to each person then a member of the Board of Directors, regular
meetings may be held at such intervals and time and place without further notice
being given.
SECTION 3.10. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or the Chief Executive
Officer or by a majority of directors then in office and shall be held at such
time and place as shall be designated in the notice of the meeting.
SECTION 3.11. NOTICE. Notice of each special meeting or, where required,
each regular meeting, of the Board of Directors shall be given to each director
either by being mailed on at least the third day prior to the date of the
meeting or by being telegraphed, faxed or given personally or by telephone on at
least 24 hours notice prior to the date of meeting. Such notice shall specify
the place, date and hour of the meeting and, if it is for a special meeting, the
purpose or purposes for which the meeting is called. At any meeting of the
Board of Directors at which every director shall be present, even though without
such notice, any business may be transacted. Any acts or proceedings taken at a
meeting of the Board of Directors not validly called or constituted may be made
valid and fully effective by ratification at a subsequent meeting which shall be
legally and validly called or constituted. Notice of any regular meeting of the
Board of Directors need not state the purpose of the meeting and, at any regular
meeting duly held, any business may be transacted. If the notice of a special
meeting shall state as a purpose of the meeting the transaction of any business
that may come before the meeting, then at the meeting any business may be
transacted, whether or not referred to in the notice thereof. A written waiver
of notice of a special or regular meeting, signed by the person or persons
entitled to such notice, whether before or after the time stated therein shall
be deemed the equivalent of such notice, and attendance of a director at a
meeting shall constitute a waiver of notice of such meeting except when the
director attends the meeting and prior to or at the commencement of such meeting
protests the lack of proper notice.
SECTION 3.12. QUORUM AND ORGANIZATION OF MEETINGS. At all meetings of the
Board of Directors, a majority shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors, except as
may be otherwise specially provided by statute or by the Certificate of
Incorporation. If a quorum shall not be present at the meeting of the Board of
Directors, a majority of the directors present may adjourn the meeting to
another time and place, and the meeting may be held as adjourned without further
notice or waiver other than an announcement at the meeting, until a quorum shall
be present. Meetings shall be presided over by the Chairman of the Board, if
any, or, in his absence, the Chief Executive Officer, or, in the absence of
both, the President. The Secretary of the Corporation shall act as secretary of
the meeting, but, in his absence the Chairman of the meeting may appoint any
person to act as secretary of the meeting.
SECTION 3.13. ACTION BY UNANIMOUS CONSENT. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, any action required or
permitted to be taken
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at any meeting of the Board of Directors, or of any committee thereof, may be
taken without a meeting, if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or committee.
SECTION 3.14. TELEPHONIC PARTICIPATION. Unless otherwise restricted by
the Certificate of Incorporation or these Bylaws, members of the Board of
Directors may participate in a meeting of the Board of Directors, or any
committee, by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and such participation in a meeting shall constitute presence in person at the
meeting.
SECTION 3.15. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
shall have and may exercise all the power or authority of the Board of Directors
in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the shareholders a dissolution of the Corporation
or a revocation of a dissolution, or amending the Bylaws of the Corporation;
and, unless the resolution or the Certificate of Incorporation expressly so
provides, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. Such committee or committees
shall have such name or names as may be determined from time to time by
resolution adopted by the Board of Directors.
SECTION 3.16. MINUTES OF COMMITTEE MEETINGS. Each committee shall keep
regular minutes of its meetings and report the same to the Board of Directors
when required.
SECTION 3.17. COMPENSATION OF DIRECTORS. No stated salary shall be paid
directors as such for their services, but by resolution of the Board of
Directors, a fixed sum may be allowed for attendance at regular or special
meetings of the Board of Directors; provided, however, that nothing herein
contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. The
Corporation may reimburse directors for out-of-pocket expenses for attendance at
regular or special meetings of the Board of Directors.
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ARTICLE IV
NOTICES
SECTION 4.1. METHOD. Whenever, unless the provisions of any statutes or
of the Certificate of Incorporation or of these Bylaws provide otherwise, notice
is required to be given to any director or shareholder, it shall be construed to
mean personal notice, but such notice may be given in writing, by mail,
addressed to such director or shareholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United
States mail or delivered to the custody of a commercial courier service. Notice
to directors may also be given by telephone or facsimile.
SECTION 4.2. WAIVER. Whenever any notice is required to be given under
the provisions of any statute 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.
ARTICLE V
OFFICERS
SECTION 5.1. ELECTION. The elected officers of the Corporation shall be
chosen by the Board of Directors and shall be a Chief Executive Officer, a
President, a Secretary and a Treasurer. The Board of Directors may also choose
a Chairman of the Board, who must be a board member of the Board of Directors,
Managing Directors, Vice Presidents, Assistant Secretaries and/or Assistant
Treasurers and such other officers as may be established and approved by the
Board of Directors. One person may hold any two or more of these offices and any
one or more of the Vice Presidents may be designated as an Executive Vice
President or Senior Vice President. Each officer shall hold office for such
term as may be prescribed by the Board of Directors from time to time. If any
vacancy shall occur in any office, the Board of Directors may elect or appoint a
successor to fill such vacancy for the remainder of the term.
SECTION 5.2. REMOVAL OF ELECTED OFFICERS. Any elected officer may be
removed at any time, with or without cause, by affirmative vote of a majority of
the whole Board of Directors, at any regular meeting or at any special meeting
called for such purpose.
SECTION 5.3. RESIGNATIONS. Any officer may resign at any time upon
written notice of resignation to the Chief Executive Officer, President,
Secretary or Board of Directors of the Corporation. Any resignation shall be
effective immediately unless a date certain is specified for it to take effect,
in which event it shall be effective upon such date, and acceptance of any
resignation shall not be necessary for any officers to be a director, and any
number of offices may be held by the same person to make it effective,
irrespective of whether the resignation is tendered subject to such acceptance.
SECTION 5.4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer will,
subject to the Board of Directors, have general executive charge, management,
and control of the properties and operations of the Corporation in the ordinary
course of its business, with all such powers with respect to such properties and
operations as may be reasonably incident to such responsibilities. If the Board
of Directors has not elected a Chairman of the Board or in the
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absence of or inability to act of the Chairman of the Board, the Chief Executive
Officer will exercise all of the powers and discharge all of the duties of the
Chairman of the Board. As between the Corporation and third parties, any action
taken by the Chief Executive Officer in the performance of the duties of the
Chairman of the Board will be conclusive evidence that there is no Chairman of
the Board or that the Chairman of the Board is absent or unable to act.
SECTION 5.5. PRESIDENT. The President will (a) exercise the duties of
supervision and management of the business of the Corporation; (b) preside at
all meetings of the shareholders and directors at which the Chairman of the
Board or the Chief Executive Officer is not present; (c) sign such contracts and
other instruments as may be required in the ordinary course of the Corporation's
business; (d) sign the minutes of all shareholders' and directors' meetings over
which the President presided; (e) execute notes, mortgages and other contracts
requiring the seal of the Corporation, except where required or permitted by law
to be otherwise signed and executed when the signing and executing thereof will
be expressly delegated by the Board of Directors to some other officer or agent
of the Corporation; (f) at the annual meeting of shareholders, submit a report
of the operations of the Corporation's affairs; (g) report to the Board of
Directors from time to time all matters coming to the president's attention
which should be brought to the attention of the Board of Directors; (h) be an ex
officio member of all standing committees; and (i) have such usual powers of
supervision and management as may pertain to the office of the President. In
addition, the President will perform, under the direction and subject to the
control of the Board of Directors, all other duties as are incidental to the
office of President and as may be prescribed by the Board of Directors from time
to time. As between the Corporation and third parties, any action taken by the
President in the performance of the duties of the Chief Executive Officer will
be conclusive evidence of the absence of or inability to act of the Chief
Executive Officer at the time such action was taken.
SECTION 5.6. VICE PRESIDENTS. In the absence of the President or in the
event of his inability or refusal to act, the Vice President, if any (or in the
event there be more than one Vice President, the Vice Presidents in the order
designated by the Board of Directors, or in the absence of any designation, then
in the order of their election), shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the President. The Vice Presidents shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
SECTION 5.7. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the same and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or
when the Board of Directors so requires, an account of all his transactions as
treasurer and of the financial condition of the Corporation. If required by the
Board of Directors, he shall give the Corporation a bond (which shall be renewed
every six years) in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
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SECTION 5.8. SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the shareholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given, notice
of all meetings of the shareholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or president, under whose supervision he shall be. He shall have
custody of the seal of the Corporation and he, or an assistant secretary, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
assistant secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature.
SECTION 5.9. COMPENSATION. The salaries and other compensation of all
officers and agents of the Corporation shall be fixed by the Board of Directors.
ARTICLE VI
CAPITAL STOCK
SECTION 6.1. CERTIFICATES. 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 of Directors, or the Chief Executive Officer,
President or a Vice President and the Treasurer, or an Assistant Treasurer, or
the Secretary or an Assistant Secretary of the Corporation, certifying the
number of shares owned by him in the Corporation. 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, option
or other special rights of each class of stock or series thereof and the
qualification, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificates
which the Corporation shall issue to represent such class or series of stock,
provided that, except as otherwise provided under the General Corporation Act of
Oklahoma, 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 shareholder who so requests the powers, designations,
preferences and relative, participating, option 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 6.2. FACSIMILE SIGNATURES. The signatures of the officers upon the
certificate may be facsimiles if the certificate is countersigned by a Transfer
Agent or registered by a registrar other than the Corporation or its employee.
In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
SECTION 6.3. TRANSFER AGENTS AND REGISTRARS. The Board of Directors may
in its discretion, appoint one or more banks or trust companies in such city or
cities as the Board of Directors may deem advisable, from time to time, to act
as Transfer Agents and
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Registrars of the shares of stock of the Corporation and, upon such appointments
being made, no certificate representing shares shall be valid until
countersigned by one of such Transfer Agents and registered by one of such
Registrars.
SECTION 6.4. LOST CERTIFICATES. In case any certificate representing
shares shall be lost, stolen or destroyed, the Board of Directors, or any
officer or officers authorized by the Board of Directors, may authorize the
issue of a substitute certificate in place of the certificate so lost, stolen or
destroyed, and, if the Corporation shall have a Transfer Agent and Registrar,
may cause or authorize such substitute certificate to be countersigned by the
appropriate Transfer Agent and registered by the appropriate Registrar. In each
such case, the applicant for a substitute certificate shall furnish to the
Corporation and to such of its Transfer Agents and Registrars as may require the
same, evidence to their satisfaction, in their discretion, of the loss, theft or
destruction of such certificate and of the ownership thereof, and also such
security or indemnity as may by them be required.
SECTION 6.5. TRANSFER OF SHARES. Transfers of shares shall be made on the
books of the Corporation only by the person named in the certificate or by his
attorney lawfully constituted in writing, and upon surrender and cancellation of
a certificate or certificates of a like number of shares, with duly executed
assignment and power of transfer endorsed thereon or attached thereto, and with
such proof of the authenticity of the signatures as the Corporation or its
agents may reasonably require. Upon the surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignation, or authority to
transfer, it shall issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
SECTION 6.6. FIXING RECORD DATE. In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or to receive payment of any dividend or
other distribution or allotment of any rights, or 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, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days before the
date of such meeting, nor more than sixty (60) days prior to any other action. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting, provided,
however, that the Board of Directors may fix a new date for the adjourned
meeting.
SECTION 6.7. REGISTERED SHAREHOLDERS. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares (a) to receive dividends, (b) to vote as such owner, and (c) to
be held liable for calls and assessments. The Corporation 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 law.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1. ACTIONS OTHER THAN BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify any person who was or is a party or is
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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 he is or was a shareholder, 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 or as a member of any committee or similar
body, against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
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 his 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 equivalent, shall not create, of itself, a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
SECTION 7.2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The
Corporation shall indemnify, any person who was or is a 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 he is or was a shareholder, director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
shareholder, director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or as a member of any
committee or similar body, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the Corporation, except
that the Corporation shall make no indemnification in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the Corporation
unless and only to the extent that the court in which such action or 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
shall deem proper.
SECTION 7.3. DETERMINATION OF RIGHT OF INDEMNIFICATION. The Corporation
shall indemnify, a person under Section 7.1 or Section 7.2 (unless ordered by a
court order) only upon a determination in the specific case that the director,
officer, employee or agent has met the applicable standard of conduct set forth
in Section 7.1 or Section 7.2. Such determination shall be made by: (a) the
Board of Directors, by a majority vote of a quorum of directors not a party to
the action, suit or proceeding; (b) absent a quorum or at the direction of a
quorum of disinterested directors, independent legal counsel, by a written
opinion; or (c) the shareholders of the Corporation.
SECTION 7.4. INDEMNIFICATION AGAINST EXPENSES OF SUCCESSFUL PARTY.
Notwithstanding the other provisions of this Article VII, to the extent that a
shareholder, director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 7.1 or Section 7.2 of these Bylaws, or in
defense of any claim, issue or matter therein, the Corporation
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shall indemnify him against expenses (including attorneys' fees) which he
actually and reasonably has incurred in connection therewith.
SECTION 7.5. ADVANCE OF EXPENSES. Expenses incurred by any director or
executive officer who may have a right of indemnification under this Article VII
in defending an action or proceeding shall be paid in advance of the final
disposition of such action or proceeding. Expenses incurred by any other person
who may have such right of indemnification shall be paid in advance of the final
disposition of such action or proceeding upon specific authorization by the
Board. Before any expenses will be advanced under this Section 7.5, the person
seeking advancement of expenses must deliver to the Board an undertaking by or
on behalf of such person to repay amounts advanced if it shall ultimately be
determined that he is not entitled to be indemnified under this Article VII.
SECTION 7.6. OTHER RIGHTS AND REMEDIES. The indemnification provided by
this Article VII shall not be deemed exclusive and is declared expressly to be
nonexclusive of any other rights to which those seeking indemnification may be
entitled under the Certificate of Incorporation or any bylaw, agreement, vote of
shareholders or disinterested directors or otherwise, both as to actions in his
official capacity and as to actions in another capacity while holding such
office. In addition, the indemnification, provided by this Article VII shall
continue as to any 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.
SECTION 7.7. INSURANCE. Upon resolution passed by the Board, the
Corporation may purchase and maintain insurance on 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 shareholder, director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise or as a member of any committee or similar body, against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article VII.
SECTION 7.8. CONSTITUENT CORPORATIONS. For the purposes of this Article
VII, references to "the Corporation" include in 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, officer, 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 or as a member of any committee or similar body, shall
stand in the same position under the provisions of this Article VII with respect
to the resulting or surviving corporation as he would have with respect to such
constituent corporation if its existence had continued.
SECTION 7.9. OTHER INSURANCE. The Corporation shall reduce the amount of
the indemnification of any person pursuant to the provisions of this Article VII
by the amount which such person collects as indemnification (a) under any policy
of insurance which the Corporation purchased and maintained on his behalf or (b)
from another corporation, partnership, joint venture, trust or other enterprise.
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SECTION 7.10. SURVIVAL. The provisions of this Article VII shall
continue as to any person who has ceased to be a director or officer of the
Corporation and shall inure to the benefit of the estate, executors,
administrators, heirs, legatees and devisees of any person entitled to
indemnification under this Article VII.
SECTION 7.11. AMENDMENT. No amendment, modification or repeal of this
Article VII or any provision hereof shall in any manner terminate, reduce or
impair the right of any past, present or future director or officer of the
Corporation to be indemnified by the Corporation, nor the obligation of the
Corporation to indemnify any such director of officer, under and in accordance
with the provisions of this Article VII as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising, in whole or in
part, from a state of facts extant on the date of, or relating to matters
occurring prior to, such amendment, modification or repeal, regardless of when
such claims may arise or be asserted.
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors as and when they deem expedient
at any regular or special meeting, out of funds legally available thereof
pursuant to law. Dividends may be paid in cash, in property, or in shares of
the Corporation's capital stock, subject to the provisions of the Certificate of
Incorporation.
SECTION 8.2. RESERVES. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meeting contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or
for such other purpose as the directors shall think conducive to the interest of
the Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
SECTION 8.3. CHECKS. All checks or demands for money, notes or other
evidence of indebtedness of the Corporation shall be signed by such officer or
officers or such other person or persons as the Board of Directors may from time
to time designate by resolution.
SECTION 8.4. EXECUTION OF PROXIES. The Chairman of the Board or the Chief
Executive Officer, or in the absence or disability of the Chairman of the Board
and the Chief Executive Officer, the President or a Vice President, may
authorize from time to time the signature and issuance of proxies to vote upon
shares of stock of other corporations standing in the name of the Corporation or
authorize the execution of consents to action taken or to be taken by such other
corporation. All such proxies and consents shall be signed in the name of the
Corporation by the Chairman of the Board or the Chief Executive Officer,
President or a Vice President and by the Secretary or an Assistant Secretary.
SECTION 8.5. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
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SECTION 8.6. EXAMINATION OF BOOKS AND RECORDS. The Board of Directors
shall determine from time to time whether, and if allowed, when and under what
conditions and regulations the accounts and books of the Corporation (except
such as may be statute by specifically opened to inspection) or any of them
shall be open to inspection by the stockholders, and the stockholders' rights in
this respect are and shall be restricted and limited accordingly.
SECTION 8.7. INTERESTED OFFICERS AND DIRECTORS. (a) No contract or
transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other corporation, partnership,
association, or other organization in which one or more of its Directors or
officers are Directors or officers, or have a financial interest, shall be void
or voidable solely for this reason, or solely because the Director or officer is
present at or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purposes, if:
(1) the material facts as to his relationship or interest and as to the
contract or transaction are disclosure or are known to the Board of
Directors or the committee, and the board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested Directors, even though the
disinterested directors be less than a quorum; or
(2) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract for
transaction is specifically approved in good faith by vote of the
stockholders; or
(3) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholder.
(b) Common or interested Directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
ARTICLE IX
AMENDMENTS
SECTION 9.1. AMENDMENTS. These Bylaws may be altered, amended or
repealed, and new Bylaws may be adopted by the Board of Directors. The
shareholders of the Corporation may not adopt, amend or repeal these Bylaws
other than by the affirmative vote of at least two-thirds (2/3) of the combined
voting power of all outstanding voting securities of the Corporation entitled to
vote generally in the election of directors of the Board of Directors of the
Corporation, voting together as a single class.
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IN WITNESS WHEREOF, these Amended and Restated Bylaws, having been duly
adopted by the Board of Directors of the Corporation in accordance with the
provisions of the General Corporation Act of the State of Oklahoma, has been
executed this _______ day of September, 2000.
CATALOG.COM, INC.
By:__________________________________________
Robert W. Crull, Chief Executive Officer
ATTEST:
By:____________________________
David D. Gaither, Secretary
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