<PAGE> 1
EXHIBIT 3.2
BYLAWS
OF
APERIAN, INC.
A DELAWARE CORPORATION
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I: OFFICES...........................................................1
1.1 Registered Office and Agent.................................1
1.2 Other Offices...............................................1
ARTICLE II: MEETINGS OF STOCKHOLDERS.........................................1
2.1 Annual Meeting..............................................1
2.2 Special Meeting.............................................1
2.3 Place of Meetings...........................................2
2.4 Notice......................................................2
2.5 Notice of Stockholder Business at Annual Meeting............2
2.6 Voting List.................................................3
2.7 Quorum......................................................3
2.8 Required Vote; Withdrawal of Quorum.........................4
2.9 Method of Voting; Proxies...................................4
2.10 Record Date.................................................4
2.11 Stockholder Action Without a Meeting........................5
ARTICLE III: DIRECTORS.......................................................6
3.1 Management..................................................6
3.2 Number; Qualification; Election; Eligibility; Term..........6
3.3 Removal.....................................................6
3.4 Newly Created Directorships and Vacancies...................6
3.5 Meetings of Directors.......................................6
3.6 Election of Officers........................................7
3.7 Regular Meetings............................................7
3.8 Special Meetings............................................7
3.9 Notice......................................................7
3.10 Quorum; Majority Vote.......................................7
3.11 Procedure...................................................7
3.12 Presumption of Assent.......................................8
3.13 Compensation................................................8
ARTICLE IV: COMMITTEES.......................................................8
4.1 Designation.................................................8
4.2 Number; Qualification; Term.................................8
4.3 Committee Changes...........................................8
4.4 Alternate Members of Committees.............................8
4.5 Regular Meetings............................................8
4.6 Special Meetings............................................8
4.7 Quorum; Majority Vote.......................................9
4.8 Minutes.....................................................9
4.9 Compensation................................................9
4.10 Responsibility..............................................9
ARTICLE V: NOTICE............................................................9
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
5.1 Method......................................................9
5.2 Waiver......................................................9
ARTICLE VI: OFFICERS........................................................10
6.1 Number; Titles; Term of Office.............................10
6.2 Removal....................................................10
6.3 Vacancies..................................................10
6.4 Authority..................................................10
6.5 Compensation...............................................10
6.6 Chairman of the Board......................................10
6.7 President..................................................10
6.8 Vice Presidents............................................11
6.9 Treasurer..................................................11
6.10 Assistant Treasurers.......................................11
6.11 Secretary..................................................11
6.12 Assistant Secretaries......................................11
ARTICLE VII: CERTIFICATES AND STOCKHOLDERS..................................12
7.1 Certificates for Shares....................................12
7.2 Replacement of Lost or Destroyed Certificates..............12
7.3 Transfer of Shares.........................................12
7.4 Registered Stockholders....................................12
7.5 Regulations................................................12
7.6 Legends....................................................12
ARTICLE VIII: MISCELLANEOUS PROVISIONS......................................13
8.1 Dividends..................................................13
8.2 Reserves...................................................13
8.3 Books and Records..........................................13
8.4 Fiscal Year................................................13
8.5 Seal.......................................................13
8.6 Resignations...............................................13
8.7 Securities of Other Corporations...........................13
8.8 Telephone Meetings.........................................14
8.9 Action Without a Meeting...................................14
8.10 Invalid Provisions.........................................14
8.11 Mortgages, etc.............................................14
8.12 Headings...................................................14
8.13 References.................................................14
8.14 Amendments.................................................14
</TABLE>
ii
<PAGE> 4
BYLAWS
OF
APERIAN, INC.
A DELAWARE CORPORATION
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "Delaware General Corporation Law") and the
certificate of incorporation (as the same may be amended and restated from time
to time) of Aperian, Inc., a Delaware corporation (the "Corporation"). In the
event of a direct conflict between the provisions of these Bylaws and the
mandatory provisions of the Delaware General Corporation Law or the provisions
of the certificate of incorporation of the Corporation, such provisions of the
Delaware General Corporation Law or the certificate of incorporation of the
Corporation, as the case may be, will be controlling.
ARTICLE I: OFFICES
1.1 Registered Office and Agent. The registered agent of the
Corporation shall be as designated from time to time by the appropriate filing
by the Corporation in the office of the Secretary of State of the State of
Delaware.
1.2 Other Offices. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the board of
directors may from time to time determine or as the business of the Corporation
may require.
ARTICLE II: MEETINGS OF STOCKHOLDERS
2.1 Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the board of directors and stated in
the notice of the meeting or in a duly executed waiver of notice of such
meeting. At such meeting, the stockholders shall elect directors and transact
such other business as may properly be brought before the meeting.
2.2 Special Meeting. A special meeting of the stockholders may be
called, and business to be considered at any such meeting may be proposed, at
any time by a majority of the members of the board of directors or by the
holder(s) of at least ten percent of the issued and outstanding stock entitled
to vote on such matters properly coming before a special meeting of the
stockholders.
A special meeting called by the board of directors shall be held on
such date and at such time as shall be designated by the board of directors and
stated in the notice of the meeting or in a duly executed waiver of notice of
such meeting. If a special meeting is called by the holder(s) of at least
1
<PAGE> 5
ten percent of the outstanding stock entitled to vote, the request shall be in
writing, signed by such stockholder(s), specifying the time of such meeting and
the general nature of the business proposed to be transacted, and shall be
delivered personally or sent by registered mail or by telegraphic or other
facsimile transmission to the Chairman of the Board, the President, or the
Secretary of the corporation. The officer receiving such request forthwith shall
cause notice to be given to the stockholders entitled to vote, in accordance
with the provisions of Sections 2.3 and 2.4 of this Article II, that a meeting
will be held at the time requested by the person or persons calling the meeting
on a date not less than thirty-five (35) nor more than sixty (60) days after the
receipt of the request. If the notice is not given within twenty (20) days after
receipt of the request, the person(s) requesting the meeting may give the
notice. Nothing contained in this paragraph of this Section 2.2 shall be
construed as limiting, fixing or affecting the time when a meeting of
stockholders called by the board of directors may be held. Only such business
shall be transacted at any special meeting as may be stated or indicated in the
notice of such meeting or in a duly executed waiver of notice of such meeting.
2.3 Place of Meetings. An annual or special meeting of
stockholders may be held at any place within or without the State of Delaware
designated by the board of directors. A special meeting of stockholders may be
held at any place within or without the State of Delaware designated by the
board of directors in the notice of the meeting or a duly executed waiver of
notice of such meeting. Meetings of stockholders shall be held at the principal
office of the Corporation unless another place is designated for meetings in the
manner provided herein.
2.4 Notice. Written or printed notice stating the place, day, and
time of each meeting of the stockholders and, in case of a special meeting, the
purpose or purposes for which the meeting is called shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting by or
at the direction of the President, the Secretary, or the officer or person(s)
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If such notice is to be sent by mail, it shall be directed to each
stockholder at his address as it appears on the records of the Corporation,
unless he shall have filed with the Secretary of the Corporation a written
request that notices to him be mailed to some other address or by some other
means, in which case it shall be directed to him at such other address or by
such other means. Notice of any meeting of stockholders shall not be required to
be given to any stockholder who shall attend such meeting in person or by proxy
and shall not, at the beginning of such meeting, object to the transaction of
any business because the meeting is not lawfully called or convened, or who
shall, either before or after the meeting, submit a signed waiver of notice, in
person or by proxy.
2.5 Notice of Stockholder Business at Annual Meeting. (a) At an
annual meeting of the stockholders, only such business shall be conducted as
shall have been brought before the meeting (i) pursuant to the Corporation's
notice of meeting, (ii) by or at the direction of a majority of the members of
the board of directors, or (iii) by any stockholder of the Corporation who is a
stockholder of record at the time of giving of notice provided for in this
bylaw, who shall be entitled to vote at such meeting, and who complies with the
notice procedures set forth in paragraph (b) of this bylaw.
(b) For business to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of paragraph (a) of this
bylaw, including the nominations of
2
<PAGE> 6
directors, the stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation at the Corporation's principal place of
business. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Corporation not less than
thirty (30) days nor more than ninety (90) days prior to the first anniversary
of the preceding year's annual meeting. Any notice given during this period will
remain valid in the event the meeting date is rescheduled. In the event that the
date of the meeting is changed by more than thirty (30) days from such
anniversary date, notice by the stockholder to be timely also may be received no
later than the close of business on the tenth day following the earlier of the
day on which notice of the date of the meeting was mailed or public disclosure
of the meeting date was made. A stockholder's notice to the Secretary with
respect to business to be brought at an annual meeting shall set forth (1) the
nature of the proposed business with reasonable particularity, including the
exact text of any proposal to be presented for adoption, and the reasons for
conducting that business at the annual meeting, (2) with respect to each such
stockholder, that stockholder's name and address (as they appear on the records
of the Corporation), business address and telephone number, residence address
and telephone number, and the number of shares of each class of capital stock of
the Corporation beneficially owned by that stockholder, and (3) any interest of
the stockholder in the proposed business.
(c) Notwithstanding anything in these bylaws to the contrary,
no business shall be conducted at an annual meeting except in accordance with
the procedures set forth in this bylaw. The chairman of an annual meeting shall,
if the facts warrant, determine and declare to the meeting that business was not
properly brought before the meeting and in accordance with the procedures
prescribed by these bylaws, 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. Nothing in this bylaw shall relieve a stockholder who
proposes to conduct business at an annual meeting from complying with all
applicable requirements, if any, of the Securities Exchange Act of 1934, and the
rules and regulations thereunder.
2.6 Voting List. At least ten days before each meeting of
stockholders, the Secretary or other officer of the Corporation who has charge
of the Corporation's stock ledger, either directly or through another officer
appointed by him or through a transfer agent appointed by the board of
directors, shall prepare a complete list of stockholders entitled to vote
thereat, arranged in alphabetical order and showing the address of each
stockholder and number of shares registered in the name of each stockholder. For
a period of ten days prior to such meeting, such list shall be kept on file at a
place within the city where the meeting is to be held, which place shall be
specified in the notice of meeting or a duly executed waiver of notice of such
meeting or, if not so specified, at the place where the meeting is to be held
and shall be open to examination by any stockholder during ordinary business
hours. Such list shall be produced at such meeting and kept at the meeting at
all times during such meeting and may be inspected by any stockholder who is
present.
2.7 Quorum. The holders of a majority of the outstanding shares
entitled to vote on a matter, present in person or by proxy, shall constitute a
quorum at any meeting of stockholders, except as otherwise provided by law, the
certificate of incorporation of the Corporation, or these bylaws. If a quorum
shall not be present, in person or by proxy, at any meeting of stockholders, the
stockholders entitled to vote thereat who are present, in person or by proxy,
or, if no stockholder entitled to vote is present, any officer of the
Corporation may adjourn the meeting from time to time,
3
<PAGE> 7
without notice other than announcement at the meeting (unless the board of
directors, after such adjournment, fixes a new record date for the adjourned
meeting), until a quorum shall be present, in person or by proxy. At any
adjourned meeting at which a quorum shall be present, in person or by proxy, any
business may be transacted which may have been transacted at the original
meeting had a quorum been present; provided that, 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 adjourned meeting.
2.8 Required Vote; Withdrawal of Quorum. When a quorum is present
at any meeting, the vote of the holders of at least a majority of the
outstanding shares entitled to vote who are present, in person or by proxy,
shall decide any question brought before such meeting, unless the question is
one on which, by express provision of statute, the certificate of incorporation
of the Corporation, or these bylaws, a different vote is required, in which case
such express provision shall govern and control the decision of such question.
The stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.9 Method of Voting; Proxies. Except as otherwise provided in the
certificate of incorporation of the Corporation or bylaw, each outstanding
share, regardless of class, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. Elections of directors need
not be by written ballot. At any meeting of stockholders, every stockholder
having the right to vote may vote either in person or by a proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact. Each such
proxy shall be filed with the Secretary of the Corporation before or at the time
of the meeting. No proxy shall be valid after three years from the date of its
execution, unless otherwise provided in the proxy. If no date is stated in a
proxy, such proxy shall be presumed to have been executed on the date of the
meeting at which it is to be voted. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power or unless otherwise made
irrevocable by law.
2.10 Record Date. (a) For the purpose of determining 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 a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the board of directors, for any such determination of
stockholders, such date in any case to be not more than sixty (60) days and not
less than ten (10) days prior to such meeting nor more than sixty (60) days
prior to any other action. If no record date is fixed:
(i) The record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be
at the close of business on the day next preceding the date on which
notice is given or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held.
4
<PAGE> 8
(ii) The record date for determining stockholders for
any other purpose shall be at the close of business on the day on which
the board of directors adopts the resolution relating thereto.
(iii) 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.
(b) Conduct of Meeting. The Chairman of the Board, if such
office has been filled, and if not, or if the Chairman of the Board is absent or
otherwise unable to act, the President shall preside at all meetings of
stockholders. The Secretary shall keep the records of each meeting of
stockholders. In the absence or inability to act of any such officer, such
officer's duties shall be performed by the officer given the authority to act
for such absent or non-acting officer under these bylaws or by some person
appointed by the meeting.
(c) Inspectors. The board of directors may, in advance of any
meeting of stockholders, appoint one or more inspectors to act at such meeting
or any adjournment thereof. If any of the inspectors so appointed shall fail to
appear or act, the chairman of the meeting shall, or if inspectors shall not
have been appointed, the chairman of the meeting may, appoint one or more
inspectors. Each inspector, before entering upon the discharge of his duties,
shall take and sign an oath faithfully to execute the duties of inspector at
such meeting with strict impartiality and according to the best of his ability.
The inspectors shall determine the number of shares of capital stock of the
Corporation outstanding and the voting power of each, the number of shares
represented at the meeting, the existence of a quorum, and the validity and
effect of proxies and shall receive votes, ballots, or consents, hear and
determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots, or consents, determine the results,
and do such acts as are proper to conduct the election or vote with fairness to
all stockholders. On request of the chairman of the meeting, the inspectors
shall make a report in writing of any challenge, request, or matter determined
by them and shall execute a certificate of any fact found by them. No director
or candidate for the office of director shall act as an inspector of an election
of directors. Inspectors need not be stockholders.
2.11 Stockholder Action Without a Meeting. Any action required to
be taken or that may be taken at any meeting of holders of Common Stock may be
taken without a meeting and without prior notice, if a consent in writing,
setting forth the action so taken, is signed by the holders of not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and
voted. Such consent shall be delivered to the Secretary of the corporation.
Unless the written consents of all of the stockholders entitled to vote
have been obtained, notice of any stockholder approval without a meeting shall
be given at least ten days before the consummation of the action authorized by
the approval to those stockholders entitled to vote who have not consented in
writing. The notice must contain or be accompanied by the same material that
would have been required to be sent in a notice of a meeting at which the
proposed action would have been submitted to the stockholders for action.
5
<PAGE> 9
ARTICLE III: DIRECTORS
3.1 Management. The business and property of the Corporation shall
be managed by the board of directors. Subject to the restrictions imposed by
law, the certificate of incorporation of the Corporation, or these bylaws, the
board of directors may exercise all the powers of the Corporation.
3.2 Number; Qualification; Election; Eligibility; Term. Except as
otherwise provided in the Certificate of Incorporation, the number of directors
which shall constitute the entire board of directors shall from time to time be
fixed exclusively by the board of directors by a resolution adopted by a
majority of the entire board of directors serving at the time of that vote.
Except as otherwise required by law, the Certificate of Incorporation, or these
bylaws, the directors of the Corporation shall be elected at an annual meeting
of stockholders at which a quorum is present by a plurality of the votes of the
shares present in person or represented by proxy and entitled to vote on the
election of directors. None of the directors need be a stockholder of the
Corporation or a resident of the State of Delaware. Each director must have
attained the age of majority.
3.3 Removal. Except as otherwise provided in the certificate of
incorporation of the Corporation, these bylaws, or by law, at the annual meeting
of stockholders or at any special meeting of stockholders called expressly for
that purpose, a director may be removed before the expiration date of that
director's term of office, either with or without cause, by an affirmative vote
of the holders of not less than a majority of the outstanding shares entitled to
vote at an election of directors.
3.4 Newly Created Directorships and Vacancies. Newly-created
directorships resulting from any increase in the authorized number of directors
and vacancies on the board of directors may be filled by no less than a majority
vote of the remaining directors then in office, and each director so chosen
shall hold office until the first annual meeting of stockholders held after his
or her appointment and until his successor is elected and qualified or, if
earlier, until his death, resignation, retirement, disqualification, or removal
from office. If there are no directors in office, an election of directors may
be held in the manner provided by statute. Except as otherwise provided in these
bylaws, when one or more directors shall resign from the board of directors,
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in these bylaws with respect to the filling of other
vacancies.
3.5 Meetings of Directors. The directors may hold their meetings
and may have an office and keep the books of the Corporation, except as
otherwise provided by statute, in such place or places within or without the
State of Delaware as the board of directors may from time to time determine or
as shall be specified in the notice of such meeting or duly executed waiver of
notice of such meeting.
6
<PAGE> 10
3.6 Election of Officers. At the first meeting of the board of
directors after each annual meeting of stockholders at which a quorum shall be
present, the board of directors shall elect the officers of the Corporation.
3.7 Regular Meetings. Regular meetings of the board of directors
shall be held at such times and places as shall be designated from time to time
by resolution of the board of directors. Notice of such regular meetings shall
not be required.
3.8 Special Meetings. Special meetings of the board of directors
shall be held whenever called by the Chairman of the Board, the President, or
any director.
3.9 Notice. The Secretary shall give written or printed notice of
each special meeting to each director no later than five (5) days before the
meeting. Notice of any such meeting need not be given to any party entitled to
notice who shall, either before or after the meeting, submit a signed waiver of
notice or who shall attend such meeting without protesting, prior to or at its
commencement, the lack of notice to him. Such notice shall state the place, day
and time of the meeting and the purpose or purposes for which the meeting is
called. If the special meeting is called by the Chairman of the Board or
President, and such person determines, in his or her sole discretion that notice
required above would not permit timely action upon the matter to be acted upon
at the meeting, then notice shall be given to each director not less than 24
hours before the time of such meeting, either personally or by telephone,
telegram or facsimile or electronic transmission .
3.10 Quorum; Majority Vote. At all meetings of the board of
directors, a majority of the directors fixed in the manner provided in these
bylaws shall constitute a quorum for the transaction of business. If at any
meeting of the board of directors there be less than a quorum present, a
majority of those present or any director solely present may adjourn the meeting
from time to time without further notice. Unless the act of a greater number is
required by law, the certificate of incorporation of the Corporation, or these
bylaws, the act of a majority of the directors present at a meeting at which a
quorum is in attendance shall be the act of the board of directors. At any time
that the certificate of incorporation of the Corporation provides that directors
elected by the holders of a class or series of stock shall have more or less
than one vote per director on any matter, every reference in these bylaws to a
majority or other proportion of directors shall refer to a majority or other
proportion of the votes of such directors.
3.11 Procedure. At meetings of the board of directors, business
shall be transacted in such order as from time to time the board of directors
may determine. The Chairman of the Board, if such office has been filled, and if
not, or if the Chairman of the Board is absent or otherwise unable to act, the
President, if he is a director, shall preside at all meetings of the board of
directors. In the absence or inability to act of either such officer, a chairman
shall be chosen by the board of directors from among the directors present. The
Secretary of the Corporation shall act as the secretary of each meeting of the
board of directors unless the board of directors appoints another person to act
as secretary of the meeting. The board of directors shall keep regular minutes
of its proceedings which shall be placed in the minute book of the Corporation.
7
<PAGE> 11
3.12 Presumption of Assent. A director of the Corporation who is
present at the meeting of the board of directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or registered mail to the Secretary of the Corporation
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a director who votes in favor of such action.
3.13 Compensation. The board of directors shall have the authority
to fix the compensation, including fees and reimbursement of expenses, paid to
directors for attendance at regular or special meetings of the board of
directors or any committee thereof; provided, that nothing contained herein
shall be construed to preclude any director from serving the Corporation in any
other capacity or receiving compensation therefor.
ARTICLE IV: COMMITTEES
4.1 Designation. The board of directors may, by resolution adopted
by a majority of the entire board of directors, designate one or more
committees.
4.2 Number; Qualification; Term. Each committee shall consist of
one or more directors appointed by resolution adopted by a majority of the
entire board of directors. The number of committee members may be increased or
decreased from time to time by resolution adopted by a majority of the entire
board of directors. Each committee member shall serve as such until the earliest
of (i) the expiration of his term as director, (ii) his resignation as a
committee member or as a director, or (iii) his removal as a committee member or
as a director.
4.3 Committee Changes. The board of directors shall have the power
at any time to fill vacancies in, to change the membership of, and to discharge
any committee.
4.4 Alternate Members of Committees. The board of directors may
designate one or more directors as alternate members of any committee. Any such
alternate member may replace any absent or disqualified member at any meeting of
the committee. If no alternate committee members have been so appointed to a
committee or each of such alternate committee members is absent or disqualified,
the member or members of such committee 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.
4.5 Regular Meetings. Regular meetings of any committee may be
held without notice at such time and place as may be designated from time to
time by the committee and communicated to all members thereof.
4.6 Special Meetings. Special meetings of any committee may be
held whenever called by any committee member. The committee member calling any
special meeting shall cause notice
8
<PAGE> 12
of such special meeting, including therein the time and place of such special
meeting, to be given to each committee member at least two days before such
special meeting.
4.7 Quorum; Majority Vote. At meetings of any committee, a
majority of the number of members designated by the board of directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at a meeting of any committee, a majority of the members present may adjourn the
meeting from time to time, without notice other than an announcement at the
meeting, until a quorum is present. The act of a majority of the members present
at any meeting at which a quorum is in attendance shall be the act of a
committee, unless the act of a greater number is required by law, the
certificate of incorporation of the Corporation, or these bylaws.
4.8 Minutes. Each committee shall cause minutes of its proceedings
to be prepared and shall report the same to the board of directors upon the
request of the board of directors. The minutes of the proceedings of each
committee shall be delivered to the Secretary of the Corporation for placement
in the minute books of the Corporation.
4.9 Compensation. Committee members may, by resolution of the
board of directors, be allowed a fixed sum and expenses of attendance, if any,
for attending any committee meetings or a stated salary.
4.10 Responsibility. The designation of any committee and the
delegation of authority to it shall not operate to relieve the board of
directors or any director of any responsibility imposed upon it or such director
by law.
ARTICLE V: NOTICE
5.1 Method. Whenever by statute, the certificate of incorporation
of the Corporation, or these bylaws, notice is required to be given to any
committee member, director, or stockholder and no provision is made as to how
such notice shall be given, personal notice shall not be required and any such
notice may be given (a) in writing, by mail, postage prepaid, addressed to such
committee member, director or stockholder at his address as it appears on the
books or (in the case of a stockholder) the stock transfer records of the
Corporation, or (b) by any other method permitted by law (including but not
limited to overnight courier service, telegram, telex, telefax or electronic
transmission). Any notice required or permitted to be given by mail shall be
deemed to be delivered and given at the time when the same is deposited in the
United States mail as aforesaid. Any notice required or permitted to be given by
overnight courier service shall be deemed to be delivered and given at the time
delivered to such service with all charges prepaid and addressed as aforesaid.
Any notice required or permitted to be given by telegram, telex, telefax or
electronic transmission shall be deemed to be delivered and given at the time
transmitted with all applicable charges prepaid and addressed as aforesaid.
5.2 Waiver. Whenever any notice is required to be given to any
stockholder, director or committee member of the Corporation by statute, the
certificate of incorporation of the Corporation, or these bylaws, a waiver
thereof in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be equivalent to the
giving of such notice.
9
<PAGE> 13
Attendance of a stockholder, director, or committee member at a meeting shall
constitute a waiver of notice of such meeting, except where such person attends
for the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
ARTICLE VI: OFFICERS
6.1 Number; Titles; Term of Office. The officers of the
Corporation shall be a President, a Secretary, and such other officers as the
board of directors may from time to time elect or appoint, including a Chairman
of the Board, one or more Vice Presidents (with each Vice President to have such
descriptive title, if any, as the board of directors shall determine), and a
Treasurer. Each officer shall hold office until his successor shall have been
duly elected and qualified, until his death, or until he shall resign or shall
have been removed in the manner hereinafter provided. Any two or more offices
may be held by the same person. None of the officers need be a stockholder or a
director of the Corporation or a resident of the State of Delaware.
6.2 Removal. Any officer or agent elected or appointed by the
board of directors may be removed by the board of directors whenever in its
judgment the best interest of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create contract rights.
6.3 Vacancies. Any vacancy occurring in any office of the
Corporation (by death, resignation, removal, or otherwise) may be filled by the
board of directors.
6.4 Authority. Officers shall have such authority and perform such
duties in the management of the Corporation as are provided in these bylaws or
as may be determined by resolution of the board of directors not inconsistent
with these bylaws.
6.5 Compensation. The compensation, if any, of officers and agents
shall be fixed from time to time by the board of directors; provided, however,
that the board of directors may delegate to a committee of the board of
directors, the Chairman of the Board or the President the power to determine the
compensation of any officer or agent (other than the officer to whom such power
is delegated).
6.6 Chairman of the Board. The Chairman of the Board, if elected
by the board of directors, shall have such powers and duties as may be
prescribed by the board of directors. Such officer shall preside at all meetings
of the stockholders and of the board of directors. Such officer may sign all
certificates for shares of stock of the Corporation.
6.7 President. The President shall be the chief executive officer
of the Corporation and, subject to the board of directors, he shall 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 absence or inability to act of the Chairman of the Board,
the President shall exercise all of the powers and
10
<PAGE> 14
discharge all of the duties of the Chairman of the Board. As between the
Corporation and third parties, any action taken by the President in the
performance of the duties of the Chairman of the Board shall be conclusive
evidence that there is no Chairman of the Board or that the Chairman of the
Board is absent or unable to act.
6.8 Vice Presidents. Each Vice President shall have such powers
and duties as may be assigned to him by the board of directors, the Chairman of
the Board, or the President, and (in the order of their seniority as determined
by the board of directors or, in the absence of such determination, as
determined by the length of time they have held the office of Vice President)
shall exercise the powers of the President during that officer's absence or
inability to act. As between the Corporation and third parties, any action taken
by a Vice President in the performance of the duties of the President shall be
conclusive evidence of the absence or inability to act of the President at the
time such action was taken.
6.9 Treasurer. The Treasurer shall have custody of the
Corporation's funds and securities, shall keep full and accurate account of
receipts and disbursements, shall deposit all monies and valuable effects in the
name and to the credit of the Corporation in such depository or depositories as
may be designated by the board of directors, and shall perform such other duties
as may be prescribed by the board of directors, the Chairman of the Board, or
the President.
6.10 Assistant Treasurers. Each Assistant Treasurer shall have such
power and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Treasurers (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Treasurer) shall exercise the powers of the Treasurer during
that officer's absence or inability to act.
6.11 Secretary. Except as otherwise provided in these bylaws, the
Secretary shall keep the minutes of all minutes of all meetings of the board of
directors and of the stockholders in books provided for that purpose, and he
shall attend to the giving and service of all notices. He may sign with the
Chairman of the Board or the President, in the name of the Corporation, all
contracts of the Corporation and affix the seal of the Corporation thereto. He
may sign with the Chairman of the Board or the President all certificates for
shares of stock of the Corporation, and he shall have charge of the certificate
books, transfer books, and stock papers as the board of directors may direct,
all of which shall at all reasonable times be open to inspection by any director
upon application at the office of the Corporation during business hours. He
shall in general perform all duties incident to the office of the Secretary,
subject to the control of the board of directors, the Chairman of the Board, and
the President.
6.12 Assistant Secretaries. Each Assistant Secretary shall have
such powers and duties as may be assigned to him by the board of directors, the
Chairman of the Board, or the President. The Assistant Secretaries (in the order
of their seniority as determined by the board of directors or, in the absence of
such a determination, as determined by the length of time they have held the
office of Assistant Secretary) shall exercise the powers of the Secretary during
that officer's absence or inability to act.
11
<PAGE> 15
ARTICLE VII: CERTIFICATES AND STOCKHOLDERS
7.1 Certificates for Shares. Certificates for shares of stock of
the corporation shall be in such form as shall be approved by the board of
directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or by the Treasurer or an Assistant Treasurer. Any and all signatures
on the certificate may be a facsimile and may be sealed with the seal of the
Corporation or a facsimile thereof. If any officer, transfer agent, or registrar
who has signed, or whose facsimile signature has been placed upon, a certificate
has ceased to be such officer, transfer agent, or registrar before such
certificate is issued, such certificate 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. The certificates shall be consecutively numbered and shall be
entered in the books of the Corporation as they are issued and shall exhibit the
holder's name and the number of shares.
7.2 Replacement of Lost or Destroyed Certificates. The board of
directors may direct a new certificate or certificates to be issued in place of
a certificate or certificates theretofore issued by the Corporation and alleged
to have been lost or destroyed, upon the making of an affidavit of that fact by
the person claiming the certificate or certificates representing shares to be
lost or destroyed. When authorizing such issue of a new certificate or
certificates, the board of directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim, or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
7.3 Transfer of Shares. Shares of stock of the Corporation shall
be transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
7.4 Registered Stockholders. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, 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 law.
7.5 Regulations. The board of directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of stock of the Corporation.
7.6 Legends. The board of directors shall have the power and
authority to provide that certificates representing shares of stock bear such
legends as the board of directors deems
12
<PAGE> 16
appropriate to assure that the Corporation does not become liable for violations
of federal or state securities laws or other applicable law.
ARTICLE VIII: MISCELLANEOUS PROVISIONS
8.1 Dividends. Subject to provisions of law and the certificate of
incorporation of the Corporation, dividends may be declared by the board of
directors at any regular or special meeting and may be paid in cash, in
property, or in shares of capital stock of the Corporation. Such declaration and
payment shall be at the discretion of the board of directors.
8.2 Reserves. There may be created by the board of directors out
of funds of the Corporation legally available therefor such reserve or reserves
as the directors from time to time, in their discretion, consider proper to
provide for contingencies, to equalize dividends, or to repair or maintain any
property of the Corporation, or for such other purpose as the board of directors
shall consider beneficial to the Corporation, and the board of directors may
modify or abolish any such reserve in the manner in which it was created.
8.3 Books and Records. The Corporation shall keep correct and
complete books and records of account, shall keep minutes of the proceedings of
its stockholders and board of directors and shall keep at its registered office
or principal place of business, or at the office of its transfer agent or
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of the shares held by
each.
8.4 Fiscal Year. The fiscal year of the Corporation shall be fixed
by the board of directors; provided, that if such fiscal year is not fixed by
the board of directors and the selection of the fiscal year is not expressly
deferred by the board of directors, the fiscal year shall be the calendar year.
8.5 Seal. The seal of the Corporation shall be such as from time
to time may be approved by the board of directors.
8.6 Resignations. Any director, committee member, or officer may
resign by so stating at any meeting of the board of directors or by giving
written notice to the board of directors, the Chairman of the Board, the
President, or the Secretary. Such resignation shall take effect at the time
specified therein or, if no time is specified therein, immediately upon its
receipt. Unless otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
8.7 Securities of Other Corporations. With the prior approval of a
majority of the Corporation's board of directors, the Chairman of the Board, the
President, or any Vice President, the Corporation shall have the power and
authority to transfer, endorse for transfer, vote, consent, or take any other
action with respect to any securities of another issuer which may be held or
owned by the Corporation and to make, execute, and deliver any waiver, proxy or
consent with respect to any such securities.
13
<PAGE> 17
8.8 Telephone Meetings. Stockholders (acting for themselves or
through a proxy), members of the board of directors and members of a committee
of the board of directors may participate in and hold a meeting of such
stockholders, board of directors or committee by means of a conference telephone
or similar communications equipment by means of which persons participating in
the meeting can hear each other and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
8.9 Action Without a Meeting. Unless otherwise restricted by the
certificate of incorporation of the Corporation or by these bylaws, any action
required or permitted to be taken at a meeting of the board of directors, or of
any committee of the board of directors, may be taken without a meeting if a
consent or consents in writing, setting forth the action so taken, shall be
signed by all the directors or all the committee members, as the case may be,
entitled to vote with respect to the subject matter thereof, and such consent
shall have the same force and effect as a vote of such directors or committee
members, as the case may be, and may be stated as such in any certificate or
document filed with the Secretary of State of the State of Delaware or in any
certificate delivered to any person. Such consent or consents shall be filed
with the minutes of proceedings of the board or committee, as the case may be.
8.10 Invalid Provisions. If any part of these bylaws shall be held
invalid or inoperative for any reason, the remaining parts, so far as it is
possible and reasonable, shall remain valid and operative.
8.11 Mortgages, etc. With respect to any deed, deed of trust,
mortgage or other instrument executed by the Corporation through its duly
authorized officer or officers, the attestation to such execution by the
Secretary of the Corporation shall not be necessary to constitute such deed,
deed of trust, mortgage or other instrument a valid and binding obligation
against the Corporation unless the resolutions, if any, of the board of
directors authorizing such execution expressly state that such attestation is
necessary.
8.12 Headings. The headings used in these bylaws have been inserted
for administrative convenience only and do not constitute matter to be construed
in interpretation.
8.13 References. Whenever herein the singular number is used, the
same shall include the plural where appropriate, and words of any gender should
include each other gender where appropriate.
8.14 Amendments. These bylaws may be amended or supplemented in any
respect at any time, either (a) at any meeting of stockholders, provided that
any amendment or supplement proposed to be acted upon at any such meeting shall
have been described or referred to in the notice of such meeting, or (b) at any
regular meeting of the board of directors or at any special meeting of the board
of directors if notice of such amendment or supplement be contained in the
notice of such special meeting, provided that no amendment or supplement adopted
by the board shall vary or conflict with any amendment or supplement adopted by
the stockholders.
Adopted as of September 5, 2000.
14
