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EXHIBIT 3.2
BYLAWS
OF
DIRECT ALLIANCE CORPORATION
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
shall be established and maintained in the City of Wilmington, in the County of
New Castle, in the State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. The annual meetings of stockholders for the
election of directors shall be held at such place, within or without the State
of Delaware, at such time and on such date and in such manner as may from time
to time be fixed by the Board of Directors and specified in the notice of such
meeting, and as permitted by law. In the event the Board of Directors fails to
so determine the place of meeting, the annual meeting of stockholders shall be
held at the offices of the Corporation, 8123 South Hardy, Tempe, Arizona. At
each annual meeting, the stockholders entitled to vote shall elect directors and
may transact such other corporate business as may properly come before the
meeting in accordance with these Bylaws.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose may
be held at such time and place and in such manner, within or without the State
of Delaware, as shall be stated in the notice of the meeting, and as permitted
by law. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Unless otherwise prescribed by law, special
meetings may be called only as provided in the Certificate of Incorporation.
SECTION 3. NOTICE OF STOCKHOLDER NOMINATIONS AND BUSINESS.
Nominations of persons for election to the Board of Directors of the
Corporation
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and the proposal of business to be considered by the stockholders may be made at
an annual meeting of stockholders: (i) pursuant to the Corporation's notice of
meeting (or any supplement thereto); (ii) by or at the direction of the Board of
Directors; or (iii) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in this Section, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section. For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to this Section, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation, and such business must otherwise be a proper subject for
stockholder action under the Delaware General Corporation Law. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not less than 60 days nor more than 90 days
prior to the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30
days before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the 90th day
prior to such annual meeting, and not later than the close of business on the
later of the 60th day prior to such annual meeting or the tenth day following
the day on which public announcement of the date of such meeting is first made
by the Corporation. In no event shall the public announcement of the date of an
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above.
Nominations of persons for election to the Board of Directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting: (i) by or at the direction of
the Board of Directors; or (ii) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
Section, who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section. Nominations by stockholders of
persons for election to the Board of Directors may be made at such a special
meeting of stockholders if the stockholder's notice required by this Section
shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the 90th day prior to such special meeting and not
later than the close of business on the later of the 60th day prior to such
special meeting or the tenth day following the day on which public announcement
is first made of the date of the special meeting and of the nominees proposed by
the Board of Directors to be elected at such meeting.
Any stockholder's notice required by this Section shall set forth: (i)
as to each person whom the stockholder proposes to nominate for election or
re-election as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of directors
in an election contest, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and Rule 14a-11 thereunder (and such person's written consent
to being named in the proxy statement as a nominee and to serving as a director
if elected); (ii) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be
brought before the
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meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner,
if any, on whose behalf the proposal is made, and in the event that such
business includes a proposal to amend the Bylaws of the Corporation, the
language of the proposed amendment; and (iii) as to the stockholder giving the
notice and the beneficial owner, if any, on whose behalf the nomination or
proposal is made (A) the name and address of such stockholder, as they appear on
the Corporation's books, and of such beneficial owner, (B) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner, (C) a representation that the stockholder
is a holder of record of stock of the Corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to propose
such business or nomination, and (D) a representation whether the proponent
intends or is part of a group which intends to solicit proxies from other
stockholders in support of such proposal or nomination.
Only such persons who are nominated in accordance with the procedures
set forth in this Section shall be eligible for election as directors at any
meeting of stockholders. Only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
procedures set forth in this Section. The chairman of the meeting shall have the
power and duty (i) to determine whether a nomination or any business proposed to
be brought before the meeting was made in accordance with the procedures set
forth in this Section and (ii) if any proposed nomination or business is not in
compliance with this Section, or if the stockholder solicits or is part of a
group which solicits proxies in support of such stockholder's proposal without
such stockholder having made the representation required by clause (iii)(D) of
the preceding paragraph, to declare that such defective proposal or nomination
shall be disregarded, and, if any proposed nomination or business is not in
compliance with this Section, to declare that such defective proposal shall be
disregarded.
For purposes of this Section, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
Section. Nothing in this Section shall be deemed to affect any rights (i) of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any series of Preferred Stock to elect directors under specified
circumstances.
SECTION 4. CONDUCT OF STOCKHOLDERS' MEETINGS. The meetings of the
stockholders shall be presided over by the Chairman of the Board, or if he or
she is not present, by an officer designated by the Board of Directors, or if
the Board of
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Directors fails to designate such officer, by a chairman to be elected at the
meeting. The Secretary, or any Assistant Secretary as designated by the chairman
of the meeting, of the Corporation shall act as secretary of such meetings; if
neither the Secretary nor an Assistant Secretary is present, then a secretary
shall be appointed by the chairman of the meeting. The order of business shall
be as determined by the chairman of the meeting. The date and time of the
opening and the closing of the polls for each matter upon which the stockholders
will vote at a meeting shall be announced at the meeting by the person presiding
over the meeting. The Board of Directors of the Corporation may, to the extent
not prohibited by law, adopt by resolution such rules and regulations for the
conduct of the meeting of stockholders 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 stockholders 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 to
the extent not prohibited by law 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
stockholders 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 stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
SECTION 5. VOTING. Except as provided in the Certificate of
Incorporation, a Certificate of Designation thereunder, or these Bylaws, each
stockholder entitled to vote in accordance with the terms of the Certificate of
Incorporation and in accordance with the provisions of these Bylaws shall be
entitled to one vote, in person or by proxy, for each share of stock entitled to
be voted which is held by such stockholder, but no proxy shall be voted after
three years from its date unless such proxy provides for a longer period. Upon
the demand of any stockholder, the vote for directors and the vote upon any
question before the meeting, shall be by ballot. Except for the election of
directors, which shall be decided by a plurality of the votes cast by the
holders of shares of capital stock of the Corporation issued and outstanding and
entitled to vote in the election of directors, present in person or represented
by proxy at the meeting, all matters shall be decided by the affirmative vote of
the holders of a majority of the voting power of the shares of capital stock of
the Corporation entitled to vote thereon, present in person or represented by
proxy at the meeting, except as otherwise provided by the Certificate of
Incorporation, a Certificate of Designation thereunder, or these Bylaws, the
rules or regulations of any stock exchange applicable to the Corporation, or as
otherwise required by law or pursuant to any regulation applicable to the
Corporation or its securities.
A complete list of the stockholders entitled to vote, arranged in
alphabetical order, with the address of each, and the number of shares held by
each, shall be open to the
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examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at the Company's principal office or on an electronic network as
determined by the Board of Directors. If such list is made available
electronically, the means by which stockholders can access it shall be specified
in the notice of the meeting. 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 stockholder who is present.
SECTION 6. QUORUM. Except as otherwise required or permitted by law, by
the Certificate of Incorporation or by these Bylaws, the presence, in person or
by proxy or as otherwise permitted by law, of stockholders holding a majority in
voting power of the stock of the Corporation outstanding and entitled to vote
shall constitute a quorum at all meetings of the stockholders. In case a quorum
shall not be present at any meeting, a majority in voting power of the
stockholders entitled to vote thereat, present in person or by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until the holders of the requisite amount of stock
entitled to vote shall be present if the time and place thereof are announced at
the meeting at which the adjournment is taken. At any such adjourned meeting at
which the requisite holders of the amount of stock entitled to vote shall be
represented, any business may be transacted which might have been transacted at
the meeting as originally noticed; but only those stockholders entitled to vote
at the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof. If the adjournment is for more than 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 stockholder of
record entitled to vote at the meeting.
SECTION 7. ELECTION INSPECTORS. The Board of Directors shall, in
advance of any meeting of stockholders, appoint one or more election inspectors
to act at such meeting (and any adjournment or adjournments thereof) and make a
written report thereof. The Board of Directors may designate one or more persons
as alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate is able to act at a meeting of stockholders, the chairman
of the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability.
The election inspector or inspectors (acting through a majority of them
if there be more than one) shall: (i) ascertain the number of shares outstanding
and the voting power of each; (ii) determine the shares represented at a meeting
and the validity of proxies and ballots; (iii) count all votes and ballots; (iv)
determine and retain for a reasonable period a record of the disposition of any
challenges made to any determination by the inspectors; and (v) certify and
announce their determination of the number of shares represented at the meeting,
and their count of all votes and ballots. No such election inspector need be a
stockholder of the Corporation. No person who is a candidate for office shall
act as an inspector. The inspectors may appoint or retain other persons or
entities to assist the inspectors in the performance of the duties of the
inspectors.
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The date and time of the opening and the closing of the polls for each
matter upon which the stockholders will vote at a meeting shall be announced at
the meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls
unless the Court of Chancery upon application by a stockholder shall determine
otherwise.
In determining the validity and counting of proxies and ballots, the
inspectors shall be limited to an examination of the proxies, any envelopes
submitted with those proxies, any information provided in accordance with the
Delaware General Corporation Law, ballots, records of electronic voting, and the
regular books and records of the Corporation, except that the inspectors may
consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees
or similar persons which represent more votes than the holder of a proxy is
authorized by the record owner to cast or more votes than the stockholder holds
of record. If the inspectors consider other reliable information for the limited
purpose permitted herein, the inspectors at the time they make their
certification pursuant to this section shall specify the precise information
considered by them including the person or persons from whom they obtained the
information, when the information was obtained, the means by which the
information was obtained and the basis for the inspectors' belief that such
information is accurate and reliable.
SECTION 8. NOTICE OF MEETINGS. Written notice, stating the place, date
and time of the meeting, and in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be given to each stockholder
entitled to vote thereat at his or her address as it appears on the records of
the Corporation, not less than ten nor more than 60 days before the date of the
meeting; provided that in the case of a meeting to consider the merger or
consolidation of the Corporation or the sale, lease or exchange of all or
substantially all of the property and assets of the Corporation, notice thereof
shall be given not less than 20 nor more than 60 days before the date of the
meeting. Business transacted at a special meeting shall be limited to the
purposes stated in the notice.
SECTION 9. ACTION WITHOUT MEETING. A resolution in writing, signed by
the Stockholders, representing all of those shares entitled to vote shall be
deemed to be the action of the Stockholders to the effect therein expressed with
the same force and effect as if the same had been duly passed by the same vote
at a duly convened meeting, and it shall be the duty of the Secretary of the
Corporation to record such Resolution in the Minute Book of the Corporation
under its proper date. Notwithstanding the preceding sentence, from and after
the date on which Insight ceases to own at least 50% of the outstanding Common
Stock of the Corporation any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual or
special meeting of the stockholders and may not be effected by any consent in
writing by such stockholders.
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ARTICLE III
DIRECTORS
SECTION 1. NUMBER. The authorized number of directors shall be fixed
from time to time by a resolution duly adopted by the Board of Directors, but
shall not be less than three nor more than nine.
SECTION 2. RESIGNATIONS. Any director, member of a committee or officer
may resign at any time. Such resignation shall be made in writing or by
electronic transmission, and shall take effect at the time specified therein,
and if no time be specified, at the time of its receipt by the Secretary. The
acceptance of a resignation shall not be necessary to make it effective.
SECTION 3. VACANCIES. Any vacancy on the Board of Directors that
results from an increase in the number of directors may be filled by a majority
of the whole Board of Directors, and any other vacancy may be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill a vacancy shall hold
office for a term that shall coincide with the term of the class to which such
director shall have been elected.
SECTION 4. POWERS. The business and affairs of this 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 of the
Corporation or by these Bylaws conferred upon or reserved to the stockholders.
SECTION 5. COMMITTEES. 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 of Directors may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of any member of such
committee or committees, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
or in these Bylaws, shall have and may exercise all of the powers and 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 except where
permitted by law, adopting an agreement of merger or consolidation, recommending
to the stockholders the sale, lease or exchange of all or substantially all of
the Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a
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dissolution, or amending the Bylaws of the Corporation; and, unless the
resolution, these Bylaws, or the Certificate of Incorporation expressly so
provide, no such committee shall have the power or authority to declare a
dividend or to authorize the issuance of stock. To the extent any such action is
not taken by the Board of Directors, each committee may choose its own chairman
and secretary, fix its own rules of procedure, and meet at such times and at
such place or places as may be provided by such rules. At every meeting of the
committee, the presence of a majority of all the members thereof shall be
necessary to constitute a quorum and the affirmative vote of a majority of the
members present shall be necessary to decide any question before the committee.
The Board of Directors shall appoint an Audit Committee consisting of
at least three directors, none of which shall be an employee of the Corporation.
The Audit Committee shall adopt a written charter that specifies the scope of
its responsibilities, which shall include reviewing the financial affairs and
procedures of the Corporation from time to time with management and meeting with
the auditors of the Corporation to review the financial statements and
procedures.
In addition, there may be an executive committee consisting of at least
three members of the Board of Directors elected by the whole Board. Members of
the executive committee shall serve at the pleasure of the Board of Directors
and each member of the executive committee may be removed with or without cause
at any time by the Board of Directors. Vacancies shall be filled by the Board of
Directors. The executive committee may exercise the powers of the Board of
Directors and the management of the business and affairs of the Corporation,
except as otherwise provided in this Section and the executive committee shall
not possess any authority prohibited to it by law.
SECTION 6. MEETINGS. The Board of Directors of the Corporation may hold
meetings, both regular and special, either within or without the State of
Delaware. The first meeting of each newly elected Board of Directors shall be
held immediately after the annual meeting of stockholders without any notice
other than these Bylaws or the time and place of such meeting may be fixed by
all the directors. Regular meetings of the directors may be held without notice
at such places and times as shall be determined from time to time by resolution
of the directors. Special meetings of the Board of Directors may be called by
the Chairman of the Board, the Chief Executive Officer, or the Board of
Directors and shall be called by the Chairman of the Board or the Secretary on
the request of any two directors on at least forty-eight hours' notice to each
director and shall be held at such place or places as may be determined by the
Board, or as shall be stated in the call of the meeting. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, members of the
Board of Directors, or any committee designated by 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 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. Notice to directors
may be given in person or by facsimile transmission, telephone, telegram, or
other means of electronic transmission described in Article V, Section 10 of
these Bylaws.
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SECTION 7. QUORUM. A majority of the authorized number of directors
shall constitute a quorum for the transaction of business. If at any meeting of
the Board of Directors there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a quorum is
obtained, and no further notice thereof need be given other than by announcement
at the meeting which shall be so adjourned.
SECTION 8. COMPENSATION. Unless otherwise restricted by the Certificate
of Incorporation, the Board of Directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of special committees may be allowed like compensation for attending committee
meetings.
SECTION 9. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting, if all members of the Board of Directors, or of
such committee as the case may be, consent thereto in writing or by electronic
transmission and such consent is filed with the minutes of proceedings of the
Board of Directors or committee.
SECTION 10. VOTING. The vote of the majority of the directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors unless by provision of statute, the Certificate of Incorporation, or
these Bylaws, the vote of a different number of directors is required, in which
case such provision shall govern.
SECTION 11. APPROVAL OR RATIFICATION BY STOCKHOLDERS. Any contract,
transaction or act of the Corporation or of the Board of Directors or of any
committee thereof or of any officer of the Corporation which shall be approved
or ratified by the holders of a majority of the outstanding stock of the
Corporation present at any annual meeting of stockholders or any special meeting
of stockholders called for such purpose shall be as valid and binding upon the
Corporation and all of its stockholders as if it had been approved or ratified
by all the stockholders of the Corporation.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS. The officers of the Corporation may include a
Chairman of the Board and shall include a Chief Executive Officer, a President,
a Treasurer, and a Secretary, all of whom shall be elected by the Board of
Directors and who shall hold office until their successors are elected and
qualified. In addition, the Board of Directors may elect one or more Vice
Chairmen, Vice Presidents and such Assistant Secretaries and Assistant
Treasurers as they may deem proper. None of the
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officers of the Corporation need be directors. The officers shall be elected at
the first meeting of the Board of Directors after each annual meeting of
stockholders. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these Bylaws otherwise provide.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board may appoint such other
officers and agents as it may deem advisable, who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board, if there
is a Chairman of the Board, shall preside at all meetings of the Board of
Directors and meetings of the stockholders of the Corporation and shall have
such other power and authority as may from time to time be assigned by the Board
of Directors.
SECTION 4. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
have the primary responsibility for and the general control and management of
all the business and affairs of the Corporation and the performance by all of
its other officers of their respective duties, under the direction of the Board.
Except as the Board of Directors shall authorize the execution thereof in some
other manner, he or she may execute contracts, deeds, mortgages, indenture,
bonds, consents, guaranties, agreements or other instruments on behalf of the
Corporation. Unless otherwise ordered by the Board of Directors, the Chief
Executive Officer shall have full power and authority on behalf of the
Corporation to attend and to act and to vote at any meeting of stockholders of
any corporation in which the Corporation may hold stock, and also to execute and
deliver for and on behalf of the Corporation proxies in respect of such
meetings, and at any such meeting the Chief Executive Officer or the individual
or individuals named in the proxy executed by the Chief Executive Officer in
respect of such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such stock and which, as the owner thereof,
the Corporation might have possessed and exercised if present; provided,
however, the Board of Directors, by resolution, from time to time may confer
like powers upon any other person or persons, which powers may be general or
confined to specific instances.
SECTION 5. PRESIDENT. In the absence or disability of the Chief
Executive Officer, the President shall perform all the duties of the Chief
Executive Officer, and when so acting shall have all the powers of, and be
subject to all the restrictions upon, the Chief Executive Officer. The President
shall have such other powers and perform such other duties as from time to time
may be prescribed by the Board of Directors or these Bylaws.
SECTION 6. VICE PRESIDENTS. Each Vice President shall have such powers
and shall perform such duties as shall be assigned to him, or her, by the Board.
If authorized to do so by the Board of Directors, any Vice President may
represent the Corporation at any meeting of the stockholders of any other
corporation in which this Corporation then holds stock, and may vote this
Corporation's stock in such other
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corporation in person or by proxy appointed by him or her, provided that the
Board of Directors may from time to time confer the foregoing authority upon any
other person or persons.
SECTION 7. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. He or she
shall deposit all moneys and other valuables in the name and to the credit of
the Corporation in such depositaries as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, the Chairman of the Board, the Chief
Executive Officer or the President, taking proper vouchers for such
disbursements. He or she shall render to the Board of Directors at their regular
meetings, or whenever they may request it, an account of all his or her
transactions as Treasurer and of the financial condition of the Corporation. If
required by the Board of Directors, he or she shall give the Corporation a bond
for the faithful discharge of his or her duties in such amount and with such
surety as the Board shall prescribe.
SECTION 8. SECRETARY. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors, and all other notices
required by law or by these Bylaws, and in case of his or her absence or refusal
or neglect so to do, any such notice may be given by any person thereunto
directed by the Chairman of the Board, the Chief Executive Officer, or by the
Board of Directors, upon whose request the meeting is called as provided by
these Bylaws. He or she shall record all of 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 such other duties as may be assigned to him or her by
the Board of Directors, the Chairman of the Board, or the Chief Executive
Officer. He or she shall have the custody of the seal of the Corporation and
shall affix the same to all instruments requiring it, when authorized by the
Board of Directors, the Chairman of the Board, the Chief Executive Officer or
the President, and attest the same.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the Board of Directors.
ARTICLE V
MISCELLANEOUS
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the
Corporation shall be entitled to have a certificate certifying the number of
shares owned by him or her in the Corporation, signed by the Chairman of the
Board, the President or any Vice President, and the Treasurer or an Assistant
Treasurer, or Secretary or an Assistant Secretary. Any or all the signatures on
the certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or
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registrar before such certificate is issued, it may be issued by the Corporation
with the same effect as if he or she were such officer, transfer agent or
registrar at the date of issue.
SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate theretofore issued by the Corporation, alleged
to have been lost, stolen or destroyed, and the Board of Directors may, in its
discretion, require the owner of the lost, stolen or destroyed certificate, or
his or her legal representative, to give the Corporation a bond, in such sum as
it may direct, sufficient to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss, theft or destruction of
any such certificate, or the issuance of any such new certificate.
SECTION 3. TRANSFER OF SHARES. Upon surrender to the Corporation or
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books. Whenever any transfer of shares shall be made for
collateral security, and not absolutely, it shall be so expressed in the entry
of transfer if, when the certificates are presented to the Corporation for
transfer, both the transferor and the transferee request the Corporation to do
so.
SECTION 4. STOCKHOLDERS RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall be in accordance with applicable law. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 5. REGISTERED STOCKHOLDERS. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends and to vote as such owner a person
registered on its books as the owner of shares, and shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on
the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
SECTION 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation and any resolution of the Board of Directors, the Board of
Directors may, out of funds legally available therefor declare dividends upon
the capital stock of the Corporation as and when it deems expedient. Dividends
may be paid in cash, in property, or in shares of capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation.
Before declaring any dividend there may be set apart out of any funds
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of the Corporation available for dividends, such sum or sums as the Board of
Directors from time to time in its discretion deems proper for working capital
or as a reserve fund to meet contingencies or for equalizing dividends or for
such other purposes as the Board of Directors shall deem conducive to the
interests of the Corporation.
SECTION 7. SEAL. The corporate seal shall be circular in form and shall
contain the name of the Corporation, the year of its creation and the words
"CORPORATE SEAL". Said seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
SECTION 8. FISCAL YEAR. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
SECTION 9. CHECKS. All checks, drafts or other orders for the payment
of money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers, agent or agents of the
Corporation, and in such manner as shall be determined from time to time by
resolution of the Board of Directors.
SECTION 10. NOTICE AND WAIVER OF NOTICE. Whenever under the provisions
of the DGCL, the Certificate of Incorporation or these Bylaws written notice is
required or permitted to be given to any Director or stockholder, and no
provision is made as to how such written notice shall be given, such notice
shall be given by mail, postage prepaid, addressed to such Director or
stockholder at such address as appears on the books of the Company; provided,
however, that upon the consent of any such Director or stockholder, the Company
may instead notify such Director or stockholder through means of an electronic
transmission, as defined in and in accordance with the provisions of the DGCL.
Any notice required or permitted to be given by mail shall be deemed to be given
at the time when the same is deposited in the United States mails as aforesaid.
Stockholders not entitled to vote shall not be entitled to receive notice of any
meetings except as otherwise provided by statute. Whenever any notice is
required to be given under the provisions of any law, or under the provisions of
the Certificate of Incorporation of the Corporation or 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. Attendance of a person at a meeting shall constitute a waiver of notice
of such meeting, except when the person attends a 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. Neither the
business to be transacted at, nor the purpose of, any regular or special meeting
of the stockholders, directors or members of a committee of directors need be
specified in any written waiver of notice.
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ARTICLE VI
INDEMNIFICATION OF OFFICERS AND DIRECTORS
SECTION 1. RIGHT TO INDEMNIFICATION. The Corporation shall to the
fullest extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only
to the extent that such amendment permits the Corporation to provide broader
indemnification rights than such law permitted the Corporation to provide prior
to such amendment), indemnify and hold harmless any person who was or is a
party, or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative by reason of the fact that such person
is or was a director or officer 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, including
service with respect to an employee benefit plan (hereinafter an "Indemnitee")
against expenses, liabilities and losses (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such Indemnitee in connection therewith;
provided, however, that except as provided in Section 3 of this Article with
respect to proceedings to enforce rights to indemnification, the Corporation
shall indemnify any such Indemnitee in connection with a proceeding (or part
thereof) initiated by such Indemnitee only if such proceeding or part thereof
was authorized by the Board of Directors of this Corporation.
SECTION 2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to
indemnification conferred in Section 1 of this Article shall include the right
to be paid by the Corporation the expenses (including attorneys' fees) incurred
in defending any such proceeding in advance of its final disposition; provided,
however, that, if the Delaware General Corporation Law requires, an advancement
of expenses incurred by an Indemnitee in his or her capacity as a director or
officer (and not in any other capacity in which service was or is rendered by
such Indemnitee, including, without limitation, service to an employee benefit
plan) shall be made only upon receipt by the Corporation of an undertaking, by
or on behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal that such Indemnitee is not entitled to be indemnified
for such expenses under this Section 2 or otherwise. The rights to
indemnification and to the advancement of expenses conferred in this Article
shall be contract rights and such rights shall continue as to an Indemnitee who
has ceased to be a director, officer, employee, or agent and shall inure to the
benefit of the Indemnitee's heirs, executors and administrators.
SECTION 3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
1 or 2 of this Article is not paid in full by the Corporation within 60 days
after a
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written claim has been received by the Corporation, except in the case of a
claim for an advancement of expenses, in which case the applicable period shall
be 20 days, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In (i) any suit brought by the Indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the Indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that and
(ii) any suit brought by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the Indemnitee has not met
any applicable standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including by a majority
of the directors who are not parties to such action, suit or proceeding, its
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the Indemnitee has not met
such applicable standard of conduct, shall create a presumption that the
Indemnitee has not met the applicable standard of conduct or, in the case of
such a suit brought by the Indemnitee, be a defense to such suit. In any suit
brought by the Indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or to such
advancement of expenses, under this Article or otherwise shall be on the
Corporation.
SECTION 4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and
advancement of expenses conferred in this Article VI shall not be exclusive of
any other rights to which any person may have or hereafter acquire under any
statute, the Corporation's Certificate of Incorporation, these Bylaws, any
agreement, vote of stockholders or disinterested directors, or otherwise.
SECTION 5. INSURANCE. The Corporation shall have the power to purchase
and maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another corporation,
partnership, joint venture, trust or other enterprise (including an employee
benefit plan) against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE CORPORATION.
The Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation to the fullest extent of the
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provisions of this Article with respect to the indemnification and advancement
of expenses of directors and officers of the Corporation.
ARTICLE VII
AMENDMENTS
These Bylaws may be altered, amended or repealed as set forth in the
Certificate of Incorporation, as it may be amended and/or restated.
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