Exhibit 3.2
BY-LAWS OF TACK ACQUISITION CORP.
ARTICLE I
MEETINGS OF STOCKHOLDERS; STOCKHOLDERS'
CONSENT IN LIEU OF MEETING
SECTION 1.01. ANNUAL MEETING. The annual meeting of the stockholders
for the election of directors, and for the transaction of such other business as
may properly come before the meeting, shall be held at such place, date and hour
as shall be fixed by the Board of Directors (hereinafter called the Board) and
designated in the notice or waiver of notice thereof; except that no annual
meeting need be held if all actions, including the election of directors,
required by the Delaware General Corporation Law to be taken at a stockholders
annual meeting are taken by written consent in lieu of meeting pursuant to
Section 1.03 of this Article.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the stockholders
for any purpose or purposes may be called by the Board, the Chairman of the
Board, the President or the Secretary of the Corporation or a stockholder or
stockholders holding of record at least a majority Of the shares of Common Stock
of the Corporation issued and Outstanding, such meeting to be held at such
place, date and hour as shall be designated in the notice or waiver of notice
thereof.
SECTION 1.03. STOCKHOLDERS' CONSENT IN LIEU OF MEETING. Any action
required by the laws of the State of Delaware to be taken at any annual or
special meeting of the stockholders of the Corporation, or any action which may
be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by all the
stockholders.
2
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.01. GENERAL POWERS. The business and affairs of the
Corporation shall be managed by or under the direction of the Board, which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by law or by the Certificate of Incorporation directed or
required to be exercised or done by the stockholders.
SECTION 2.02. NUMBER AND TERM OF OFFICE. The number of directors which
shall constitute the Whole Board shall be fixed from time to time by a vote of a
majority of the Whole Board. The term "Whole Board" is used herein to refer to
the number of directors from time to time authorized to be on the Board
regardless of the number of directors then in office. Directors need not be
stockholders. Each director shall hold office until his successor is elected and
qualified, or until his earlier death or resignation or removal in the manner
hereinafter provided.
SECTION 2.03. RESIGNATION, REMOVAL AND VACANCIES. Any director may
resign at any time by giving written notice of his resignation to the Board, the
Chairman of the Board, the President or the Secretary of the Corporation. Such
resignation shall take effect at the time specified therein or, if the time be
not specified, upon receipt thereof; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Any director or the entire Board may be removed, with or without cause,
at any time by the holders of a majority of the shares then entitled to vote at
an election of directors or by written consent of the stockholders pursuant to
Section 1.03 of Article I hereof.
3
Vacancies in the Board and newly created directorships resulting from
any increase in the authorized number of directors may be filled by a majority
of the directors then in office, although less than a quorum, or by a sole
remaining director.
SECTION 2.04. MEETING. (a) ANNUAL MEETING. As soon as practicable after
each annual election of directors, the Board shall meet for the purpose of
organization and the transaction of other business, unless it shall have
transacted all such business by written consent pursuant to Section 2.05 of this
Article.
(b) OTHER MEETINGS. Other meetings of the Board shall be held at such
times and places as the Board, the Chairman of the Board or the President shall
from time to time determine.
(c) NOTICE OF MEETINGS. The Secretary shall give notice to each
director of each meeting, including the time, place and purpose of such meeting.
Notice of each such meeting shall be mailed to each director, addressed to him
at his residence or usual place of business, at least two days before the day on
which such meeting is to be held, or shall be sent to him at such place by
telegraph, cable, wireless or other form of recorded communication, or be
delivered personally or by telephone not later than the day before the day on
which such meeting is to be held, but notice need not be given to any director
who shall attend such meeting. A written waiver of notice, signed by the person
entitled thereto, whether before or after the time of the meeting stated
therein, shall be deemed equivalent to notice.
(d) PLACE OF MEETINGS. The Board may hold its meetings at such place or
places within or without the State of Delaware as the Board may from time to
time determine, or
4
as shall be designated in the respective notices or waivers of notice thereof.
(e) OUORUM AND MANNER OF ACTING. One-third of the total number of
directors then in office (but not less than two) shall be present in person at
any meeting of the Board in order to constitute a quorum for the transaction of
business at such meeting, and the vote of a majority of those directors present
at any such meeting at which a quorum is present shall be necessary for the
passage of any resolution or act of the Board, except as otherwise expressly
required by law or these By-laws. In the absence of a quorum for any such
meeting, a majority of the directors present thereat may adjourn such meeting
from time to time until a quorum shall be present.
(f) ORGANIZATION. At each meeting of the Board, one of the following
shall act as chairman of the meeting and preside, in the following order of
precedence:
(i) the Chairman of the Board;
(ii) the President;
(iii) any director chosen by a majority of the directors present. The
Secretary or, in the case of his absence, any person (who shall be an Assistant
Secretary, if an Assistant Secretary is present) whom the Chairman shall appoint
shall act as secretary of such meeting and keep the minutes thereof.
SECTION 2.05. DIRECTORS' CONSENT IN LIEU OF MEETING. Action required or
permitted to be taken at any meeting of the Board, or of any committee thereof,
may be taken without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing and the writing or writings are filed
with the minutes or the proceedings of the Board or committee.
5
SECTION 2.06. ACTION BY MEANS OF CONFERENCE TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT. Any one or more members of the Board, or any committee
designated by the Board, may participate in a meeting of the Board or any such
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting by such means shall constitute presence in person
at such meeting.
ARTICLE III
COMMITTEES OF THE BOARD
SECTION 3.01. APPOINTMENT OF EXECUTIVE COMMITTEE. The Board may from
time to time by resolution passed by a majority of the whole Board designate
from its members an Executive Committee to serve at the pleasure of the Board.
The Chairman of the Executive Committee shall be designated by the Board. The
Board may designate one or more directors as alternate members of the Executive
Committee, who may replace any absent or disqualified member or members at any
meeting of the Executive Committee. The Board shall have power at any time to
change the membership of the Executive Committee, to fill all vacancies in it
and to discharge it, either with or without cause.
SECTION 3.02. PROCEDURES OF EXECUTIVE COMMITTEE. The Executive
Committee, by a vote of a majority of its members, shall fix by whom its
meetings may be called and the manner of calling and holding its meetings, shall
determine the number of its members requisite to constitute a quorum for the
transaction of business and shall prescribe its own rules of procedure, no
change in which shall be made except by a majority vote of its members or by the
Board.
SECTION 3.03. POWERS OF EXECUTIVE COMMITTEE. During the intervals
between the meetings of the Board,
6
unless otherwise determined from time to time b), resolution passed by the whole
Board, the Executive Committee shall possess and may exercise all the powers and
authority of the Board in the management and direction 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, except that the Executive Committee
shall not have power or authority in reference to:
(a) amending the Certificate of Incorporation;
(b) adopting an agreement of merger or consolidation;
(c) recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets;
(d) recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution;
(e) submitting to stockholders any action which pursuant to the
Delaware General Corporation Law requires stockholders, approval;
(f) filling vacancies in the Board or in any committee or fixing
compensation of members of the Board for serving on the Board or on any
committee;
(g) amending or repealing the By-laws;
(h) declaring a dividend or authorizing the issuance of stock; or
(i) amending or repealing any resolution of the Board which by its
terms is not so amendable or repealable.
SECTION 3.04. REPORTS OF EXECUTIVE COMMITTEE. The Executive Committee
shall keep regular minutes of its proceedings, and all action by the Executive
Committee shall be reported promptly to the Board. Such action shall be subject
to review by the Board, provided that no rights of third parties shall be
affected by such review.
7
SECTION 3.05. OTHER COMMITTEES. The Board, by resolution adopted by a
majority of the whole Board, may designate from among its members one or more
other committees, each of which shall have such authority of the Board as may be
specified in the resolution of the Board designating such committee; PROVIDED,
however, that any such committee so designated shall not have any powers not
allowed to the Executive Committee under Section 3.03 of this Article III. The
Board shall have power at any time to change the members of any such committee,
designate alternate members of any such committee and fill vacancies therein;
and any such committee shall serve at the pleasure of the Board.
ARTICLE IV
OFFICERS
SECTION 4.01. EXECUTIVE OFFICERS. The executive officers of the
Corporation shall be a President, a Secretary and a Treasurer and may include a
Chairman of the Board, one or more Vice Presidents and one or more Assistant
Secretaries or Assistant Treasurers. Any two or more Offices may be held by the
same person.
SECTION 4.02. AUTHORITY AND DUTIES. All officers, as between themselves
and the Corporation, shall have such authority and perform such duties in the
management of the Corporation as may be provided in these By-laws or, to the
extent not so provided, by the Board.
SECTION 4.03. TERM OF OFFICE, RESIGNATION AND REMOVAL. All officers
shall be elected or appointed by the Board and shall hold office for such term
as may be prescribed by the Board. The Chairman of the Board, if any, and the
President shall be elected or appointed from among the members of the Board.
Each officer shall hold office until his successor has been elected or appointed
and
8
qualified or his earlier death or resignation or removal in the manner
hereinafter provided. The Board may require any officer to give security for the
faithful performance of his duties.
Any officer may resign at any time by giving written notice to the
President or the Secretary of the Corporation, and such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective is not specified therein, at the time it is accepted by action of the
Board. Except as aforesaid, the acceptance of such resignation shall not be
necessary to make it effective.
All officers and agents elected or appointed by the Board shall be
subject to removal at any time by the Board or by the stockholders of the
Corporation with or without cause.
SECTION 4.04. VACANCIES. If an office becomes vacant for any reason,
the Board shall fill such vacancy. Any officer so appointed or elected by the
Board shall serve only until such time as the unexpired term of his predecessor
shall have expired unless reelected or reappointed by the Board.
SECTION 4.05. CHAIRMAN OF THE BOARD. If there shall be a Chairman of
the Board, he shall preside at meetings of the Board and of the stockholders at
which he is present, and shall give counsel and advice to the Board and the
officers of the Corporation on all subjects touching the welfare of the
Corporation and the conduct of its business. He shall perform such other duties
as the Board may from time to time determine. Except as otherwise provided by
resolution of the Board he shall be ex officio a member of all committees of the
Board.
SECTION 4.06. THE PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation and,
9
unless the Chairman of the Board be present or the Board has provided otherwise
by resolution, he shall preside at all meetings of the Board and the
stockholders at which he is present. He shall have general and active management
and control of the business and affairs of the Corporation subject to the
control of the Board and the Executive Committee, if any, and shall see that all
orders and resolutions of the Board and the Executive Committee, if any, are
carried into effect.
SECTION 4.07. VICE PRESIDENTS. The Vice President or, if there be more
than one, the Vice Presidents in the order of their seniority or in any other
order determined by the Board, shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President, and
shall generally assist the President and perform such other duties as the Board
or the President shall prescribe.
SECTION 4.08. The SECRETARY. The Secretary shall, to the extent
practicable, attend all meetings of the Board and all meetings of the
stockholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose, and shall perform like duties for the standing
committees when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and Of the Board, and shall perform such other
duties as may be prescribed by the Board or the President, under whose
supervision he shall perform such duties. He shall keep in safe custody the seal
of the Corporation and affix the same to any duly authorized instrument
requiring it and, when so affixed, it shall be attested by his signature or by
the signature of the Treasurer or an Assistant Secretary or Assistant Treasurer.
He shall keep in safe custody the certificate books and stockholder records and
such other books and records as the Board may direct and shall perform
10
all other duties as from time to time may be assigned to him by the Chairman of
the Board, the President or the Board.
SECTION 4.09. ASSISTANT SECRETARIES. The Assistant Secretaries, if any,
in order of their seniority or in any other order determined by the Board shall,
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary and shall perform such other duties as the Board or
the Secretary shall prescribe.
SECTION 4.10. THE TREASURER. The Treasurer shall have the care and
custody of the corporate funds and other valuable effects, including securities,
and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation, and shall deposit all moneys and other valuable
effects to the name and to the credit of the Corporation in such depositories as
may be designated by the Board. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board, taking proper vouchers for such
disbursements, and shall render to the President and directors, at the regular
meetings of the Board, or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the Corporation;
and, in general, perform all the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the President
or the Board.
SECTION 4.11. ASSISTANT TREASURERS. The Assistant Treasurers, if any,
in the order of their seniority or in any other order determined by the Board,
shall in the absence or disability of the Treasurer perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board or the Treasurer shall prescribe.
11
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 5.01. EXECUTION OF DOCUMENTS. The Board shall designate the
officers, employees and agents of the Corporation who shall have power to
execute and deliver deeds, contracts, mortgages, bonds, debentures, checks,
drafts and other orders for the payment of money and other documents for and in
the name of the Corporation, and may authorize such officers, employees and
agents to delegate such power (including authority to redelegate) by written
instrument to other officers, employees or agents of the Corporation; and,
unless so designated or expressly authorized by these By-laws, no officer or
agent or employee shall have any power or authority to bind the Corporation by
any contract or engagement or to pledge its credit or to render it liable
pecuniarily for any purpose or to any amount.
SECTION 5.02. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board or Treasurer or any other officer of the Corporation
to whom power in this respect shall have been given by the Board shall select.
SECTION 5.03. PROXIES IN RESPECT OF STOCK OR OTHER SECURITIES OF OTHER
CORPORATIONS. The Board shall designate the officers of the Corporation who
shall have authority from time to time to appoint an agent or agents of the
Corporation to exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation may have as the holder of stock or other
securities in any other corporation, and to vote or consent in respect of such
stock or securities; such designated officers may instruct the person or persons
so appointed as to the manner of exercising such powers and rights; and such
designated officers may execute or cause to be executed in the name and on
behalf of
12
the Corporation and under its corporate seal, or otherwise, such written
proxies, powers of attorney or other instruments as they may deem necessary or
proper in order that the Corporation may exercise its said powers and rights.
ARTICLE VI
SHARES AND THEIR TRANSFER; FIXING RECORD DATE
SECTION 6.01. CERTIFICATES FOR SHARES. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number and
class of shares owned by him in the Corporation, which shall otherwise be in
such form as shall be prescribed by the Board. Certificates of each class shall
be issued in consecutive order and shall be numbered in the order of their
issue, and shall be signed by, or in the name of, the Corporation by the
Chairman of the Board, the President or a Vice President and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary.
SECTION 6.02. RECORD. A record (herein called the stock record) in one
or more counterparts shall be kept Of the name of the person, firm or
corporation owning the shares represented by each certificate for stock of the
Corporation issued, the number of shares represented by each such certificate,
the date thereof and, in the case of cancelation, the date of cancelation.
Except as otherwise expressly required by law, the person in whose name shares
of stock stand on the stock record of the Corporation shall be deemed the owner
thereof for all purposes as regards the Corporation.
SECTION 6.03. REGISTRATION OF STOCK. Registration of transfers of
shares of the Corporation shall be made only on the books of the Corporation
upon request of the registered holder thereof, or of his attorney thereunto
authorized by power of attorney duly executed and filed with
13
the Secretary of the Corporation, and upon the surrender of the certificate or
certificates for such shares properly endorsed or accompanied by a stock power
duly executed.
SECTION 6.04. ADDRESSES OF STOCKHOLDERS. Each stockholder shall
designate to the Secretary of the Corporation an address at which notices of
meetings and all other corporate notices may be served or mailed to him, and, if
any stockholder shall fail to designate such address, corporate notices may be
served upon him by mail directed to him at his post office address, if any, as
the same appears on the share record books of the Corporation or at his last
known post office address.
SECTION 6.05. LOST, DESTROYED AND MUTILATED CERTIFICATES. The Board or
a committee designated thereby with power so to act may, in its discretion,
cause to be issued a new certificate or certificates for stock of the
Corporation in place of any certificate issued by it and reported to have been
lost, destroyed or mutilated, upon the surrender of the mutilated certificates
or, in the case of loss or destruction of the certificate, upon satisfactory
proof of such loss or destruction, and the Board or such committee may, in its
discretion, require the owner of the lost or destroyed certificate or his legal
representative to give the Corporation a bond in such sum and with such surety
or sureties as it may direct to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss or destruction of any such
certificate.
SECTION 6.06. REGULATIONS. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates for stock of the
Corporation.
SECTION 6.07. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD.
In order that the Corporation may
14
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, 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 may fix, in advance, a
record date, which shall not be more than 50 nor less than 10 days before the
date of such meeting, nor more than 50 days prior to any other action. A
determination of stockholders entitled to notice of or to vote at a meeting of
the stockholders shall apply to any adjournment of the meeting; PROVIDED,
HOWEVER, that the Board may fix a new record date for the adjourned meeting.
ARTICLE VII
SEAL
The Board shall provide a corporate seal, which shall be in the form of
a circle and shall bear the full name of the Corporation and the words and
figures "Corporate Seal Delaware 2000".
ARTICLE VIII
FISCAL YEAR
The fiscal year of the Corporation shall end on the 31st day of
December in each year unless changed by resolution of the Board.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
SECTION 9.01. INDEMNIFICATION. (a) (i) Any person made, or threatened
to be made, a party to any threatened, pending or completed action, suit or
proceeding, whether
15
civil, criminal, administrative or investigative, by reason of the fact that he,
his testator or intestate is or was a director, officer, employee or agent of
the Corporation or any corporation which may be absorbed in a consolidation or
merger with the Corporation and which if its separate existence had continued
would have had power and authority to indemnify such person (a "Predecessor"),
shall be indemnified by the Corporation and (ii) any person made, or threatened
to be made, a party to such an action, suit or proceeding, by reason of the fact
that he, his testator or intestate is or was serving as a director, officer,
employee or agent at the request of the Corporation, of any other corporation or
any partnership, joint venture, trust or other enterprise (an "Affiliate"), may,
at the discretion of the Board, be indemnified by the Corporation, in each case,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, or in connection with any appeal therein; provided
that such person acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the Corporation, Predecessor or
Affiliate, as the case may be, or with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct unlawful; except, in
the case of an action, suit or proceeding by or in the right of the Corporation
in relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such director, officer, employee or agent is liable for
negligence or misconduct in the performance of his duties, unless a court having
jurisdiction shall determine that, despite such adjudication, such person is
fairly and reasonably entitled to indemnification.
16
(b) Without limitation of any right conferred by paragraph (a) of this
Section 9.01, (i) any person made, or threatened to be made, a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he, his
testator or intestate is or was a director officer, employee or agent of the
Corporation or a Predecessor and is or was serving as a fiduciary of, or
otherwise rendering services to, any employee benefit plan of, or relating to
the Corporation or a Predecessor, shall be indemnified by the Corporation, and
(ii) any person made, or threatened to be made, a party to such an action, suit
or proceeding, by reason of the fact that he, his testator or intestate is or
was serving as a director, officer, employee or agent at the request of the
Corporation or an Affiliate, and is or was serving as a fiduciary of, or
otherwise rendering services to, any employee benefit plan of, or relating to
such Affiliate, may, at the discretion of the Board, be indemnified by the
Corporation, in each case, against expenses (including attorneys' fees),
judgments, fines, excise taxes and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding,
or in connection with any appeal therein; provided that such person acted in
good faith and in a manner he reasonably believed to be in, or not opposed to,
the best interests of the Corporation, Predecessor or Affiliate, as the case may
be, or with respect to a criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful; except in the case of an action, suit or
proceeding by or in the right of the Corporation in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such
director, officer, employee or agent is liable for negligence or misconduct in
the performance of his duties, unless a court having jurisdiction
17
shall determine that, despite such adjudication, such person is fairly and
reasonably entitled to indemnification.
(c) The foregoing rights of indemnification shall not be deemed
exclusive of any other rights to which any director, officer, employee or agent
may be entitled or of any power of the Corporation apart from the provisions of
this Section 9.01.
SECTION 9.02. INSURANCE FOR INDEMNIFICATION. The Corporation may
purchase and maintain insurance for the indemnification of the Corporation and
the directors, officers, employees and agents of the Corporation to the full
extent and in the manner permitted by the applicable laws of the United States
and the State of Delaware from time to time in effect.
ARTICLE X
WAIVER OF NOTICE
Whenever any notice whatever is required to be given by these By-laws
or the Certificate of Incorporation of the Corporation or the laws of the State
of Delaware, the Person entitled thereto may, in person or by attorney thereunto
authorized, in writing or by telegraph, cable or other form of recorded
communication, waive such notice, whether before or after the meeting or other
matter in respect of which such notice is given, and in such event such notice
need not be given to such person and such waiver shall be deemed equivalent to
such notice.
ARTICLE XI
AMENDMENTS
Any By-law (including these By-laws) may be adopted, amended or
repealed by the Board in any manner not inconsistent with the laws of the State
of Delaware or the Certificate of Incorporation.