EXHIBIT 3.2
MATTRESS DISCOUNTERS CORPORATION
OFFICER'S CERTIFICATE
Pursuant to Section 5.2(b) of that certain Transaction Agreement dated as of May
28, 1999, as amended (the "Transaction Agreement"), by. and among ▇▇▇▇▇▇-▇▇▇▇▇▇
Company, ▇▇▇▇▇▇-▇▇▇▇▇▇ Associates, Inc. and MD Acquisition Corporation, the
undersigned officer of Mattress Discounters Corporation (the "Company") does
hereby certify that annexed hereto as Exhibit A is a true, accurate and complete
copy of the bylaws of the Company.
Mattress Discounters Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
Dated: August 6, 1999
MATTRESS DISCOUNTERS CORPORATION***
BYLAWS
ARTICLE I
OFFICES
Section 1. The Corporation's principal office in the State of Delaware
shall be in the City of Wilmington, County of New Castle.
Section 2. The Corporation may also have offices at such other places
both within and without the State of Delaware as the Corporation's board of
directors (the "Board") may from time to time determine or the Corporation's
business may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Subject to Section 2 of this Article, all meetings of the
stockholders for the election of directors shall be held at such time and place,
within or without the State of Delaware, as may be fixed from time to time by
the Board. Meetings of stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on such date
in the month of April of each year and at such place (within or without the
State of Delaware) as is designated from time to time by the Board and stated in
the notice of the meeting. At each annual meeting, the stockholders shall elect
the Board and shall transact such other business as may properly be brought
before the meeting.
Section 3. Written notice of the annual meeting shall be given to each
stockholder entitled to vote at such meeting not fewer than 10 nor more than 60
days prior to the meeting.
Section 4. The officer who has charge of the Corporation's stock ledger
shall prepare and make, at least 10 days before every election of directors, a
complete list of the stockholders entitled to vote at said election, arranged in
alphabetical order, showing the address of and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, during ordinary business hours, for a period of at least 10
days prior to the election, either at a place within the city, town or village
where the election is to be held and which place shall be specified in the
notice of the meeting, or, if not specified, at the
__________________________________
* As adopted by the Board on March 5, 1996.
** [Handwritten note: name changed by Certificate of Correction 3/5/96]
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place where said meeting is to be held, and the list shall be produced and kept
at the time and place of election during the whole time thereof, and subject to
the inspection of any stockholder who may be present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Corporation's
certificate of incorporation (the "Charter"), may be called by the Chairman of
the Board ("Chairman") or the President and shall be called by the Chairman or
the President or Secretary at the request in writing of a majority of the Board,
or at the request in writing of stockholders owning at least 35% of the
Corporation's capital stock outstanding and entitled to vote at such meeting.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting of stockholders, stating
the time, place and purposes thereof, shall be given to each stockholder
entitled to vote at such meeting not fewer than 10 nor more than 60 days prior
to the meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the Corporation's capital stock
and outstanding, and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the Corporation's capital stock outstanding and having
voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of the statutes or of the Charter, a different vote is required in
which case such express provision shall govern and control the decision of such
question.
Section 10. Each stockholder shall at every meeting of the stockholders
be entitled to one vote in person or by proxy for each share of the capital
stock having voting power held by such stockholder, but no proxy shall be voted
on after three years from its date, unless the proxy provides for a longer
period, and, except where the Corporation's transfer books have been closed or a
date has been fixed as a record date for the determination of its stockholders
entitled to vote, no capital stock shall be voted on at any election for
directors which has been transferred on the Corporation's books within 20 days
next preceding such election of directors.
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Section 11. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken in connection with any corporate action by any
provisions of the statutes or of the Charter, the meeting and vote of
stockholders may be dispensed with, if all the stockholders who would have been
entitled to vote upon the action if such meeting were held, shall consent in
writing to such corporate action being taken.
ARTICLE III
DIRECTORS
Section 1. The number of directors of the Corporation shall be at least
one, or such other number as shall be determined from time to time by the Board.
The directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 2 of this Article, and each director elected shall hold
office until his successor has been duly elected and has qualified. Directors
need not be stockholders nor residents of the State of Delaware.
Section 2. Vacancies 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, though less than a quorum, or by the sole
remaining director, and the directors so chosen shall hold office until the next
annual meeting of the stockholders or until their successors are duly elected
and shall qualify, unless sooner displaced.
Section 3.
(a) Except as otherwise provided by law, the Charter or these
Bylaws, at any meeting of the stockholders called expressly for such purpose,
any director may be removed, with or without cause, by a vote of the
stockholders holding a majority of the capital stock outstanding and entitled to
vote at an election of directors.
(b) Any director ▇▇▇ resign at any time by giving written notice
to the Board, the Chairman, the President or the Secretary of the Corporation.
Unless otherwise specified such written notice, a resignation shall take effect
upon delivery thereof to the Board or the designated officer. A resignation need
not be accepted for it to be effective.
Section 4. The Corporation's business shall be managed by the Board
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 Charter or by these Bylaws
directed or required to be exercised or done by the stockholders.
BOARD MEETINGS
Section 5. The Board may hold meetings, both regular and special,
either within or without the State of Delaware.
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Section 6. The first meeting of each newly elected Board shall be held
at such time and place as shall be fixed by the vote of the stockholders at the
annual meeting and no notice of such meeting shall be necessary to the newly
elected directors to constitute legally the meeting, provided a quorum shall be
present. If the stockholders fail to fix the time or place of such first meeting
of the newly elected Board, or if such meeting is not held at the time and place
so fixed by the stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board, or as shall be specified in a written waiver signed by
all of the directors.
Section 7. Regular meetings of the Board may be held without notice at
such time and at such place as shall from time to time be determined by the
Board.
Section 8. Special meetings of the Board may be called by the Chairman
or the President on two days prior written notice to each director, either
personally, by mail or by telegram; special meetings may be called by the
Chairman or the President or Secretary in like manner and on like notice upon
the written request of two directors.
Section 9. At all meetings of the Board, a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any Board meeting at which there is a
quorum shall be the act of the Board, except as may be otherwise specifically
provided by statute or by the Charter. If a quorum shall not be present at any
Board meeting, the directors present thereat may adjourn the meeting from time
to time without notice other than announcement at the meeting until a quorum
shall be present. The Chairman shall preside at all meetings of the Board.
Section 10. Unless otherwise restricted by the Charter or these Bylaws,
any 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 prior to such action a
written consent thereto is signed by all Board members or of such committee as
the case may be, and such written consent is filed with the minutes of
proceedings of the Board or such committee.
Section 11. The Board may participate in meetings by means of conference
telephone or similar communications equipment, whereby all directors
participating in the meeting can hear each other at the same time, and
participation in any such meeting shall constitute presence in person by such
director at such meeting. A written record shall be made of all actions taken at
any meeting conducted by means of a conference telephone or similar
communications equipment.
BOARD COMMITTEES
Section 12. The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of two
or more of the directors of the Corporation, which, to the extent provided in
the resolution, shall have and may exercise the powers of the Board in the
management of the Corporation's business and affairs and may authorize the
Corporation's seal to be affixed to all papers which may require it. Such
committee
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or committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board.
Section 13. Each committee shall keep regular minutes of its meetings
and report the same to the Board when required.
COMPENSATION OF DIRECTORS
Section 14. The directors may be paid their expenses, if any, of
attendance at each Board meeting and may be paid a fixed sum for attendance at
each Board meeting 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 or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered either personally or by first class mail with postage prepaid, in
either case addressed to the directors or stockholders at their addresses
appearing on the Corporation's books. Notice delivered personally shall be
deemed to be given at the time when the same shall be received by the addressee,
and notice by mail shall be deemed to be given at the time when the same shall
be deposited in the United States mail. Notice to directors may also be given by
telegram and shall be deemed to be given at the time when the same shall be
received by the addressee.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Charter or of these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE V
OFFICERS
Section 1. The Corporation's officers shall be chosen by the Board and
shall consist of a Chairman (if the Board both deems it advisable that the
Chairman shall be an officer of the Corporation and selects one), a President,
one or more Executive Vice Presidents and Vice Presidents (if and to the extent
required by law or if not required, if the Board from time to time appoints a
Vice President or Vice Presidents), a Secretary and a Treasurer. The Board also
may choose one or more Assistant Secretaries and/or Assistant Treasurers and
such other officers and/or agents as the Board from time to time deems necessary
or appropriate. The Board may delegate to the Chairman and/or the President of
the Corporation the authority to appoint any officer or agent of the Corporation
and to fill a vacancy other than the Chairman, President, Secretary or
Treasurer. The election or appointment of any officer of the Corporation in
itself
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shall not create contract rights for any such officer. All officers of the
Corporation shall exercise such powers and perform such duties as from time to
time shall be determined by the Board.
Section 2. Each officer of the Corporation shall hold office at the
Board's pleasure, and any officer may be removed, with or without cause, at any
time by the affirmative vote of a majority of the directors then in office,
provided that any officer appointed by the Chairman or the President pursuant to
authority delegated to the Chairman or the President by the Board may be
removed, with or without cause, at any time whenever the Chairman or the
President in his absolute discretion shall consider that the Corporation's best
interests shall be served by such removal. Removal of an officer by the Board,
the Chairman or the President, as the case may be, shall not prejudice the
contract rights, if any, of the person so removed. Vacancies (however caused) in
any office may be filled for the unexpired portion of the term b% the Board (or
by the Chairman or the President in the case of a vacancy occurring in an office
to which the Chair-man or the President has been delegated the authority to make
appointments).
Section 3. The salaries of all officers of the Corporation shall be
fixed from time to time by the Board, and no officer shall be prevented from
receiving a salary by reason of the fact that he also receives from the
Corporation compensation in any other capacity.
PRESIDENT
Section 4. The President, subject to the Board's direction, shall have
general charge of the Corporation's business, affairs and property and general
supervision over its other officers and agents. In general, the President shall
perform all duties incident to the office of the chief executive officer of a
stock corporation and shall see that all orders and resolutions of the Board are
carried into effect. Unless otherwise prescribed by the Board, the President
shall have full power and authority on the Corporation's behalf to attend, act
and vote at any meeting of security holders of other corporations in which the
Corporation may hold securities. At any such meeting, the President shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities that the Corporation possesses and has the power to exercise.
The Board from time to time may confer like powers upon any other person or
persons. The President (or, in his absence, the Chairman if present) shall
preside at all meetings of the Corporation's stockholders.
EXECUTIVE VICE PRESIDENTS
Section 5. Each Executive Vice President of the Corporation, subject to
the President's and Board's direction, shall perform such executive, supervisory
and management functions and duties as from time to time may be assigned to him
by the Board. Unless the President is present at such meeting (in person or by
proxy), the Executive Vice President - Chief Operating Officer shall have the
same power and authority as the President to attend, act and vote on the
Corporation's behalf at any meeting of security holders of other corporations in
which the Corporation may hold securities. Also, in the absence of the
President, the Executive Vice President - Chief Executive Officer shall perform
the duties and exercise the powers of the President.
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VICE PRESIDENT
Section 6. The Vice President(s) shall also generally assist the
President and Executive Vice Presidents and shall perform such other duties and
have such other powers as from time to time may be prescribed by the President,
Executive Vice President or the Board.
SECRETARY AND ASSISTANT SECRETARY
Section 7. The Secretary shall attend all meetings of the Board and of
the stockholders and shall record all votes and the proceedings of all meetings
in a book to be kept or such purposes. The Secretary also shall perform like
duties for the executive committee or other committees, if required by any such
committee. The Secretary shall give (or cause to be given) notice of all
meetings of the stockholders and all special Board meetings and shall perform
such other duties as from time to time may be prescribed by the Board, the
Chairman, the President or any Executive Vice President. The Secretary shall
have custody of the Corporation's seal, shall have authority (as shall any
Assistant Secretary) to affix the seal to any instrument requiring it, and to
attest the seal by his signature. The Board may give general authority to
officers other than the Secretary or any Assistant Secretary to affix the
Corporation's seal and to attest the affixing thereof by his signature.
Section 8. The Assistant Secretary, if any (or if there is more than
one, the Assistant Secretaries in the order designated, or in the absence of any
designation, in the order of their election), in the absence or disability of
the Secretary, shall perform the duties and exercise the powers of the
Secretary. The Assistant Secretary(ies) shall perform such other duties and have
such other powers as from time to time may be prescribed by the Board, the
Chairman, the President or any Executive Vice President.
TREASURER AND ASSISTANT TREASURER
Section 9. The Treasurer shall have the custody of the corporate funds,
securities, other similar valuable effects, and evidences of indebtedness, 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 in
the name and to the credit of the Corporation in such depositories as from time
to time may be designated by the Board. The Treasurer shall disburse the funds
of the Corporation in such manner as may be ordered by the Board from time to
time and shall render to the Chairman, the President, Executive Vice President -
Chief Operating Officer and the Board, at regular meetings of the Board or
whenever any of them may so require, an account of all transactions and of the
financial condition of the Corporation.
Section 10. The Assistant Treasurer, if any (or if there is more than
one, the Assistant Treasurers in the order designated, or in the absence of any
designation, in the order of their election), in the absence or disability of
the Treasurer, shall perform the duties and exercise the powers of the
Treasurer. The Assistant Treasurer(s) shall perform such other duties and have
such other powers as from time to time may be prescribed by the Board, the
Chairman, the President or any Executive Vice President.
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ARTICLE VI
INDEMNIFICATION AND EXCULPATION; TRANSACTIONS WITH AFFILIATED PERSONS
Section 1. Indemnification and Exculpation. Reference is hereby made to
Section 145 of the General Corporation Law of the State of Delaware (or any
successor provision thereto). The Corporation shall indemnify each person who
may be indemnified (the "Indemnitees") pursuant to such section, to the full
extent permitted thereby. In each and every situation where the Corporation may
do so under such section, the Corporation hereby obligates itself to so
indemnify the Indemnitees, and in each case, if any, where the Corporation must
make certain investigations on a case-by-case basis prior to indemnification,
the Corporation hereby obligates itself to pursue such investigation diligently,
it being the specific intention of these Bylaws to obligate the Corporation to
indemnify each person whom it may indemnify to the fullest extent permitted by
law at any time and from time to time. To the extent not prohibited by Section
145 of the General Corporation Law of the State of Delaware (or any other
provision of the General Corporation Law of the State of Delaware), the
Indemnitees shall not be liable to the Corporation except for their own
individual will fill misconduct or actions taken in bad faith.
Section 2. Common or Interested Officers and Directors. The
Corporation's directors and officers shall exercise their powers and duties in
good faith and with a view to the Corporation's best interests. No contract or
other transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any corporation, firm, association or
other entity in which one or more of the Corporation's directors or officers are
directors or, or are pecuniarily or otherwise interested, shall be either void
or voidable because of such common directorate, officership or interest, because
such directors or officers are present at the meeting of the Board or any
committee thereof which authorizes, approves or ratifies the contract or
transaction, or because his, her or their votes are counted for such purpose, if
(unless other-wise prohibited by law) any of the conditions specified in the
following paragraphs exist:
(a) the material facts of the common directorate or interest or
contract or transaction are disclosed or known to the Board or committee thereof
and the Board or committee authorizes or ratifies such contract or transaction
in good faith by the affirmative vote of a majority of the disinterested
directors, even though the number of such disinterested directors may be less
than a quorum; or
(b) the material facts of the common directorate or interest or
contract or transaction are disclosed or known to the stockholders entitled to
vote thereon and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or
(c) the contract or transaction is fair and commercially
reasonable to the Corporation at the time it is authorized, approved or ratified
by the Board, a committee thereof, or the stockholders, as the case may be.
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Common or interested directors may be counted in determining whether a
quorum is present at any meeting of the Board or committee thereof which
authorizes, approves or ratifies any contract or transaction, and may vote
thereat to authorize any contract or transaction with like force and effect as
if he, she or they were not such directors or officers of such other corporation
or were not so interested.
ARTICLE VII
CERTIFICATE OF STOCK
Section 1. Every holder of capital stock in the Corporation shall be
entitled to have a certificate, signed by, or in the Corporation's name by, the
Chairman, the President, Executive Vice President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares of the Corporation's capital
stock owned by him.
Section 2. Where a certificate is signed (1) by a transfer agent or an
assistant transfer agent or (2) by a transfer clerk acting on the Corporation's
behalf and a registrar, the signature of any such Chairman, President, Executive
Vice President, Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary may be facsimile. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the Corporation.
LOST CERTIFICATES
Section 3. The Secretary or Treasurer may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Secretary or Treasurer may, in such
officer's 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 such officer shall
require and/or to give the Corporation a bond in such sum as such officer may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost or destroyed.
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TRANSFERS OF STOCK
Section 4. Upon surrender to the Corporation or the Corporation's transfer
agent of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
Corporation's duty to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The Board may close the Corporation's stock transfer books for
a period not fewer than 10 nor more than 60 days preceding the date of any
meeting of stockholders or the date for payment of any dividend or the date for
the allotment of rights or the date when any change or conversion or exchange of
capital stock shall go into effect or for a period not fewer than 10 nor more
than 60 days in connection with obtaining the consent of stockholders for any
purpose. In lieu of closing the stock transfer books as aforesaid, the Board may
fix in advance a date, not fewer than 10 or more than 60 days preceding the date
of any meeting of stockholders, or the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting, and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such case such stockholders and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be notwithstanding any transfer of any
stock on the Corporation's books after any such record date fixed as aforesaid.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of its capital stock to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of the Corporation's
capital stock, 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.
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ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the Corporation's capital stock, subject to the
provisions of the Charter, if any, may be declared by the Board at any regular
or special meeting, pursuant to law. Dividends may be paid in cash, in property,
or in capital stock, subject to Charter provisions.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such purpose as
the directors shall think conducive to the Corporation's interest and the
directors may modify or abolish any such reserve in the manner in which it was
created.
ANNUAL STATEMENT
Section 3. The Board shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the Corporation's business and condition.
CHECKS
Section 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board may from time to time designate.
FISCAL YEAR
Section 5. The Corporation's fiscal year shall be as determined from time
to time by the Board.
SEAL
Section 6. If the Board elects to adopt a corporate seal, the corporate
seal shall have inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, State of Delaware." The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
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STOCK OPTION PLAN
Section 7. The Board shall have the power to administer in accordance with
the respective terms thereof, such stock option plan as may from time to time be
approved by the Board or the stockholders and to take such action as the Board
may deem fit to carry out the purposes of such plan.
ARTICLE IX
AMENDMENTS
Section 1. These Bylaws may be altered or repealed at any regular meeting
of the stockholders or of the Board or at any special meeting of the
stockholders or of the Board if notice of such alteration or repeal be contained
in the notice of such special meeting.
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MATTRESS DISCOUNTERS, INC.*
BYLAWS
ARTICLE I
OFFICES
Section 1. The Corporation's principal office in the State of Delaware
shall be in the City of Wilmington, County of New Castle.
Section 2. The Corporation may also have offices at such other places both
within and without the State of Delaware as the Corporation's board of directors
(the "Board") may from time to time determine or the Corporation's business may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Subject to Section 2 of this Article, all meetings of the
stockholders for the election of directors shall be held at such time and place,
within or without the State of Delaware, as may be fixed from time to time by
the Board. Meetings of stockholders for any other purpose may be held at such
time and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on such date in
the month of April of each year and at such place (within or without the State
of Delaware) as is designated from time to time by the Board and stated in the
notice of the meeting. At each annual meeting, the stockholders shall elect the
Board and shall transact such other business as may properly be brought before
the meeting.
Section 3. Written notice of the annual meeting shall be given to each
stockholder entitled to vote at such meeting not fewer than 10 nor more than 60
days prior to the meeting.
Section 4. The officer who has charge of the Corporation's stock ledger
shall prepare and make, at least 10 days before every election of directors, a
complete list of the stockholders entitled to vote at said election, arranged in
alphabetical order, showing the address of and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of
any stockholder, during ordinary business hours, for a period of at least 10
days prior to the election, either at a place within the city, town or village
where the election is to be held and which place shall be specified in the
notice of the meeting, or, if not specified, at the place where said meeting is
to be held, and the list shall be produced and kept at the time and
_________________________
* As adopted by the Board on March 5, 1996.
place of election during the whole time thereof, and subject to the inspection
of any stockholder who may be present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the Corporation's
certificate of incorporation (the "Charter"), may be called by the Chairman of
the Board ("Chairman") or the President and shall be called by the Chairman or
the President or Secretary at the request in writing of a majority of the Board,
or at the request in writing of stockholders owning at least 35% of the
Corporation's capital stock outstanding and entitled to vote at such meeting.
Such request shall state the purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting of stockholders, stating
the time, place and purposes thereof, shall be given to each stockholder
entitled to vote at such meeting not fewer than 10 nor more than 60 days prior
to the meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the Corporation's capital stock
and outstanding, and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the Corporation's capital stock outstanding and having
voting power present in person or represented by proxy shall decide any question
brought before such meeting, unless the question is one upon which by express
provision of the statutes or of the Charter, a different vote is required in
which case such express provision shall govern and control the decision of such
question.
Section 10. Each stockholder shall at every meeting of the stockholders be
entitled to one vote in person or by proxy for each share of the capital stock
having voting power held by such stockholder, but no proxy shall be voted on
after three years from its date, unless the proxy provides for a longer period,
and, except where the Corporation's transfer books have been closed or a date
has been fixed as a record date for the determination of its stockholders
entitled to vote, no capital stock shall be voted on at any election for
directors which has been transferred on the Corporation's books within 20 days
next preceding such election of directors.
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Section 11. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken in connection with any corporate action by any
provisions of the statutes or of the Charter, the meeting and vote of
stockholders may be dispensed with, if all the stockholders who would have been
entitled to vote upon the action if such meeting were held, shall consent in
writing to such corporate action being taken.
ARTICLE III
DIRECTORS
Section 1. The number of directors of the Corporation shall be at least
one, or such other number as shall be determined from time to time by the Board.
The directors shall be elected at the annual meeting of the stockholders, except
as provided in Section 2 of this Article, and each director elected shall hold
office until his successor has been duly elected and has qualified. Directors
need not be stockholders nor residents of the State of Delaware.
Section 2. Vacancies 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, though less than a quorum, or by the sole
remaining director, and the directors so chosen shall hold office until the next
annual meeting of the stockholders or until their successors are duly elected
and shall qualify, unless sooner displaced.
Section 3.
(a) Except as otherwise provided by law, the Charter or these
Bylaws, at any meeting of the stockholders called expressly for such purpose,
any director may be removed, with or without cause, by a vote of the
stockholders holding a majority of the capital stock outstanding and entitled to
vote at an election of directors.
(b) Any director ▇▇▇ resign at any time by giving written notice
to the Board, the Chairman, the President or the Secretary of the Corporation.
Unless otherwise specified such written notice, a resignation shall take effect
upon delivery thereof to the Board or the designated officer. A resignation need
not be accepted for it to be effective.
Section 4. The Corporation's business shall be managed by the Board 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 Charter or by these Bylaws directed or
required to be exercised or done by the stockholders.
BOARD MEETINGS
Section 5. The Board may hold meetings, both regular and special, either
within or without the State of Delaware.
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Section 6. The first meeting of each newly elected Board shall be held at
such time and place as shall be fixed by the vote of the stockholders at the
annual meeting and no notice of such meeting shall be necessary to the newly
elected directors to constitute legally the meeting, provided a quorum shall be
present. If the stockholders fail to fix the time or place of such first meeting
of the newly elected Board, or if such meeting is not held at the time and place
so fixed by the stockholders, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board, or as shall be specified in a written waiver signed by
all of the directors.
Section 7. Regular meetings of the Board may be held without notice at
such time and at such place as shall from time to time be determined by the
Board.
Section 8. Special meetings of the Board may be called by the Chairman or
the President on two days prior written notice to each director, either
personally, by mail or by telegram; special meetings may be called by the
Chairman or the President or Secretary in like manner and on like notice upon
the written request of two directors.
Section 9. At all meetings of the Board, a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any Board meeting at which there is a
quorum shall be the act of the Board, except as may be otherwise specifically
provided by statute or by the Charter. If a quorum shall not be present at any
Board meeting, the directors present thereat may adjourn the meeting from time
to time without notice other than announcement at the meeting until a quorum
shall be present. The Chairman shall preside at all meetings of the Board.
Section 10. Unless otherwise restricted by the Charter or these Bylaws,
any 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 prior to such action a
written consent thereto is signed by all Board members or of such committee as
the case may be, and such written consent is filed with the minutes of
proceedings of the Board or such committee.
Section 11. The Board may participate in meetings by means of conference
telephone or similar communications equipment, whereby all directors
participating in the meeting can hear each other at the same time, and
participation in any such meeting shall constitute presence in person by such
director at such meeting. A written record shall be made of all actions taken at
any meeting conducted by means of a conference telephone or similar
communications equipment.
BOARD COMMITTEES
Section 12. The Board may, by resolution passed by a majority of the
whole Board, designate one or more committees, each committee to consist of two
or more of the directors of the Corporation, which, to the extent provided in
the resolution, shall have and may exercise the powers of the Board in the
management of the Corporation's business and affairs and may authorize the
Corporation's seal to be affixed to all papers which may require it. Such
committee
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or committees shall have such name or names as may be determined from time to
time by resolution adopted by the Board.
Section 13. Each committee shall keep regular minutes of its meetings
and report the same to the Board when required.
COMPENSATION OF DIRECTORS
Section 14. The directors may be paid their expenses, if any, of
attendance at each Board meeting and may be paid a fixed sum for attendance at
each Board meeting 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 or standing committees may
be allowed like compensation for attending committee meetings.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing and
delivered either personally or by first class mail with postage prepaid, in
either case addressed to the directors or stockholders at their addresses
appearing on the Corporation's books. Notice delivered personally shall be
deemed to be given at the time when the same shall be received by the addressee,
and notice by mail shall be deemed to be given at the time when the same shall
be deposited in the United States mail. Notice to directors may also be given by
telegram and shall be deemed to be given at the time when the same shall be
received by the addressee.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Charter or of these Bylaws, a waiver
thereof in writing, signed by the person or persons entitled to said notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto.
ARTICLE V
OFFICERS
Section 1. The Corporation's officers shall be chosen by the Board and
shall consist of a Chairman (if the Board both deems it advisable that the
Chairman shall be an officer of the Corporation and selects one), a President,
one or more Executive Vice Presidents and Vice Presidents (if and to the extent
required by law or if not required, if the Board from time to time appoints a
Vice President or Vice Presidents), a Secretary and a Treasurer. The Board also
may choose one or more Assistant Secretaries and/or Assistant Treasurers and
such other officers and/or agents as the Board from time to time deems necessary
or appropriate. The Board may delegate to the Chairman and/or the President of
the Corporation the authority to appoint any officer or agent of the Corporation
and to fill a vacancy other than the Chairman, President, Secretary or
Treasurer. The election or appointment of any officer of the Corporation in
itself
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shall not create contract rights for any such officer. All officers of the
Corporation shall exercise such powers and perform such duties as from time to
time shall be determined by the Board.
Section 2. Each officer of the Corporation shall hold office at the
Board's pleasure, and any officer may be removed, with or without cause, at any
time by the affirmative vote of a majority of the directors then in office,
provided that any officer appointed by the Chairman or the President pursuant to
authority delegated to the Chairman or the President by the Board may be
removed, with or without cause, at any time whenever the Chairman or the
President in his absolute discretion shall consider that the Corporation's best
interests shall be served by such removal. Removal of an officer by the Board,
the Chairman or the President, as the case may be, shall not prejudice the
contract rights, if any, of the person so removed. Vacancies (however caused) in
any office may be filled for the unexpired portion of the term b% the Board (or
by the Chairman or the President in the case of a vacancy occurring in an office
to which the Chairman or the President has been delegated the authority to make
appointments).
Section 3. The salaries of all officers of the Corporation shall be
fixed from time to time by the Board, and no officer shall be prevented from
receiving a salary by reason of the fact that he also receives from the
Corporation compensation in any other capacity.
PRESIDENT
Section 4. The President, subject to the Board's direction, shall have
general charge of the Corporation's business, affairs and property and general
supervision over its other officers and agents. In general, the President shall
perform all duties incident to the office of the chief executive officer of a
stock corporation and shall see that all orders and resolutions of the Board are
carried into effect. Unless otherwise prescribed by the Board, the President
shall have full power and authority on the Corporation's behalf to attend, act
and vote at any meeting of security holders of other corporations in which the
Corporation may hold securities. At any such meeting, the President shall
possess and may exercise any and all rights and powers incident to the ownership
of such securities that the Corporation possesses and has the power to exercise.
The Board from time to time may confer like powers upon any other person or
persons. The President (or, in his absence, the Chairman if present) shall
preside at all meetings of the Corporation's stockholders.
EXECUTIVE VICE PRESIDENTS
Section 5. Each Executive Vice President of the Corporation, subject to
the President's and Board's direction, shall perform such executive, supervisory
and management functions and duties as from time to time may be assigned to him
by the Board. Unless the President is present at such meeting (in person or by
proxy), the Executive Vice President - Chief Operating Officer shall have the
same power and authority as the President to attend, act and vote on the
Corporation's behalf at any meeting of security holders of other corporations in
which the Corporation may hold securities. Also, in the absence of the
President, the Executive Vice President - Chief Executive Officer shall perform
the duties and exercise the powers of the President.
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VICE PRESIDENT
Section 6. The Vice President(s) shall also generally assist the
President and Executive Vice Presidents and shall perform such other duties and
have such other powers as from time to time may be prescribed by the President,
Executive Vice President or the Board.
SECRETARY AND ASSISTANT SECRETARY
Section 7. The Secretary shall attend all meetings of the Board and of
the stockholders and shall record all votes and the proceedings of all meetings
in a book to be kept or such purposes. The Secretary also shall perform like
duties for the executive committee or other committees, if required by any such
committee. The Secretary shall give (or cause to be given) notice of all
meetings of the stockholders and all special Board meetings and shall perform
such other duties as from time to time may be prescribed by the Board, the
Chairman, the President or any Executive Vice President. The Secretary shall
have custody of the Corporation's seal, shall have authority (as shall any
Assistant Secretary) to affix the seal to any instrument requiring it, and to
attest the seal by his signature. The Board may give general authority to
officers other than the Secretary or any Assistant Secretary to affix the
Corporation's seal and to attest the affixing thereof by his signature.
Section 8. The Assistant Secretary, if any (or if there is more than
one, the Assistant Secretaries in the order designated, or in the absence of any
designation, in the order of their election), in the absence or disability of
the Secretary, shall perform the duties and exercise the powers of the
Secretary. The Assistant Secretary(ies) shall perform such other duties and have
such other powers as from time to time may be prescribed by the Board, the
Chairman, the President or any Executive Vice President.
TREASURER AND ASSISTANT TREASURER
Section 9. The Treasurer shall have the custody of the corporate funds,
securities, other similar valuable effects, and evidences of indebtedness, 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 in
the name and to the credit of the Corporation in such depositories as from time
to time may be designated by the Board. The Treasurer shall disburse the funds
of the Corporation in such manner as may be ordered by the Board from time to
time and shall render to the Chairman, the President, Executive Vice President -
Chief Operating Officer and the Board, at regular meetings of the Board or
whenever any of them may so require, an account of all transactions and of the
financial condition of the Corporation.
Section 10. The Assistant Treasurer, if any (or if there is more than
one, the Assistant Treasurers in the order designated, or in the absence of any
designation, in the order of their election), in the absence or disability of
the Treasurer, shall perform the duties and exercise the powers of the
Treasurer. The Assistant Treasurer(s) shall perform such other duties and have
such other powers as from time to time may be prescribed by the Board, the
Chairman, the President or any Executive Vice President.
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ARTICLE VI
INDEMNIFICATION AND EXCULPATION; TRANSACTIONS WITH AFFILIATED PERSONS
Section 1. Indemnification and Exculpation. Reference is hereby made to
Section 145 of the General Corporation Law of the State of Delaware (or any
successor provision thereto). The Corporation shall indemnify each person who
may be indemnified (the "Indemnitees") pursuant to such section, to the full
extent permitted thereby. In each and every situation where the Corporation may
do so under such section, the Corporation hereby obligates itself to so
indemnify the Indemnitees, and in each case, if any, where the Corporation must
make certain investigations on a case-by-case basis prior to indemnification,
the Corporation hereby obligates itself to pursue such investigation diligently,
it being the specific intention of these Bylaws to obligate the Corporation to
indemnify each person whom it may indemnify to the fullest extent permitted by
law at any time and from time to time. To the extent not prohibited by Section
145 of the General Corporation Law of the State of Delaware (or any other
provision of the General Corporation Law of the State of Delaware), the
Indemnitees shall not be liable to the Corporation except for their own
individual will fill misconduct or actions taken in bad faith.
Section 2. Common or Interested Officers and Directors. The
Corporation's directors and officers shall exercise their powers and duties in
good faith and with a view to the Corporation's best interests. No contract or
other transaction between the Corporation and one or more of its directors or
officers, or between the Corporation and any corporation, firm, association or
other entity in which one or more of the Corporation's directors or officers are
directors or, or are pecuniarily or otherwise interested, shall be either void
or voidable because of such common directorate, officership or interest, because
such directors or officers are present at the meeting of the Board or any
committee thereof which authorizes, approves or ratifies the contract or
transaction, or because his, her or their votes are counted for such purpose, if
(unless other-wise prohibited by law) any of the conditions specified in the
following paragraphs exist:
(a) the material facts of the common directorate or interest or
contract or transaction are disclosed or known to the Board or committee thereof
and the Board or committee authorizes or ratifies such contract or transaction
in good faith by the affirmative vote of a majority of the disinterested
directors, even though the number of such disinterested directors may be less
than a quorum; or
(b) the material facts of the common directorate or interest or
contract or transaction are disclosed or known to the stockholders entitled to
vote thereon and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or
(c) the contract or transaction is fair and commercially reasonable
to the Corporation at the time it is authorized, approved or ratified by the
Board, a committee thereof, or the stockholders, as the case may be.
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Common or interested directors may be counted in determining whether a
quorum is present at any meeting of the Board or committee thereof which
authorizes, approves or ratifies any contract or transaction, and may vote
thereat to authorize any contract or transaction with like force and effect as
if he, she or they were not such directors or officers of such other corporation
or were not so interested.
ARTICLE VII
CERTIFICATE OF STOCK
Section 1. Every holder of capital stock in the Corporation shall be
entitled to have a certificate, signed by, or in the Corporation's name by, the
Chairman, the President, Executive Vice President or a Vice President and the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares of the Corporation's capital
stock owned by him.
Section 2. Where a certificate is signed (1) by a transfer agent or an
assistant transfer agent or (2) by a transfer clerk acting on the Corporation's
behalf and a registrar, the signature of any such Chairman, President, Executive
Vice President, Vice President, Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary may be facsimile. In case any officer or officers who have
signed, or whose facsimile signature or signatures have been used on, any such
certificate or certificates shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the Corporation and
be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures have been
used thereon had not ceased to be such officer or officers of the Corporation.
LOST CERTIFICATES
Section 3. The Secretary or Treasurer may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed
upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost or destroyed. When authorizing such issue of a
new certificate or certificates, the Secretary or Treasurer may, in such
officer's 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 such officer shall
require and/or to give the Corporation a bond in such sum as such officer may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost or destroyed.
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TRANSFERS OF STOCK
Section 4. Upon surrender to the Corporation or the Corporation's
transfer agent of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment or authority to transfer, it shall be
the Corporation's duty to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The Board may close the Corporation's stock transfer books
for a period not fewer than 10 nor more than 60 days preceding the date of any
meeting of stockholders or the date for payment of any dividend or the date for
the allotment of rights or the date when any change or conversion or exchange of
capital stock shall go into effect or for a period not fewer than 10 nor more
than 60 days in connection with obtaining the consent of stockholders for any
purpose. In lieu of closing the stock transfer books as aforesaid, the Board may
fix in advance a date, not fewer than 10 or more than 60 days preceding the date
of any meeting of stockholders, or the date for the payment of any dividend, or
the date for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in connection with
obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting, and any
adjournment thereof, or entitled to receive payment of any such dividend, or to
any such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of capital stock, or to give such consent, and in
such case such stockholders and only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting and any adjournment thereof, or to receive payment of such
dividend, or to receive such allotment of rights, or to exercise such rights, or
to give such consent, as the case may be notwithstanding any transfer of any
stock on the Corporation's books after any such record date fixed as aforesaid.
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of its capital stock to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of the Corporation's
capital stock, 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.
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ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the Corporation's capital stock, subject to
the provisions of the Charter, if any, may be declared by the Board at any
regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in capital stock, subject to Charter provisions.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve or reserves to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such purpose as
the directors shall think conducive to the Corporation's interest and the
directors may modify or abolish any such reserve in the manner in which it was
created.
ANNUAL STATEMENT
Section 3. The Board shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders,
a full and clear statement of the Corporation's business and condition.
CHECKS
Section 4. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board may from time to time designate.
FISCAL YEAR
Section 5. The Corporation's fiscal year shall be as determined from
time to time by the Board.
SEAL
Section 6. If the Board elects to adopt a corporate seal, the corporate
seal shall have inscribed thereon the name of the Corporation, the year of its
organization and the words "Corporate Seal, State of Delaware." The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
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STOCK OPTION PLAN
Section 7. The Board shall have the power to administer in accordance
with the respective terms thereof, such stock option plan as may from time to
time be approved by the Board or the stockholders and to take such action as the
Board may deem fit to carry out the purposes of such plan.
ARTICLE IX
AMENDMENTS
Section 1. These Bylaws may be altered or repealed at any regular
meeting of the stockholders or of the Board or at any special meeting of the
stockholders or of the Board if notice of such alteration or repeal be contained
in the notice of such special meeting.
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