Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 102 483K
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 19 72K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 21 74K
4: EX-4.1 Instrument Defining the Rights of Security Holders 74 237K
10: EX-10.10 Material Contract 3 20K
11: EX-10.11 Material Contract 9 39K
12: EX-10.12 Material Contract 7 29K
13: EX-10.13 Material Contract 6 29K
5: EX-10.5 Material Contract 14 59K
6: EX-10.6 Material Contract 14 59K
7: EX-10.7 Material Contract 2 14K
8: EX-10.8 Material Contract 2 11K
9: EX-10.9 Material Contract 2 13K
14: EX-23.1 Consent of Experts or Counsel 1 6K
15: EX-27.1 Financial Data Schedule (Pre-XBRL) 2 8K
EX-3.2 — Articles of Incorporation/Organization or By-Laws
Exhibit Table of Contents
Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
KOZMO.COM, INC.
EFFECTIVE AS OF MARCH 16, 2000
ARTICLE I
OFFICES
SECTION 1.01. REGISTERED OFFICE. The registered office of
Kozmo.com, Inc. (the "CORPORATION") in the State of Delaware shall be at the
principal office of The Corporation Trust Company in the City of Wilmington,
County of New Castle, and the registered agent in charge thereof shall be The
Corporation Trust Company.
SECTION 1.02. OTHER OFFICES. The Corporation may also have an
office or offices at any other place or places within or without the State of
Delaware as the Board of Directors of the Corporation (the "Board") may from
time to time determine or the business of the Corporation may from time to time
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 2.01. ANNUAL MEETINGS. Meetings of stockholders of the
Corporation for the election of directors of the Corporation ("DIRECTORS"), and
for the transaction of such other business as may properly come before such
meeting, shall be held annually at such place, date and time as shall be fixed
by the Board and designated in the notice or waiver of notice of such annual
meeting; PROVIDED, HOWEVER, that no annual meeting of stockholders need be held
if all actions, including the election of Directors, required by the General
Corporation Law of the State of Delaware (the "GENERAL CORPORATION LAW") to be
taken at such annual meeting are taken by written consent in lieu of meeting
pursuant to Section 2.09 hereof.
SECTION 2.02. SPECIAL MEETINGS. Special meetings of
stockholders for any purpose or purposes may be called by the Board or the
Chairman of the Board of the Corporation (the "CHAIRMAN"), the President of the
Corporation (the "PRESIDENT") or the Secretary of the Corporation (the
"SECRETARY") or by the recordholders of at least a majority of the shares of
stock
of the Corporation issued and outstanding ("SHARES") and entitled to vote
thereat, to be held at such place, date and time as shall be designated in the
notice or waiver of notice thereof.
SECTION 2.03. NOTICE OF MEETINGS. (a) Except as otherwise
provided by law, written notice of each annual or special meeting of
stockholders stating the place, date and time of such meeting and, in the case
of a special meeting, the purpose or purposes for which such meeting is to be
held, shall be given personally or by first-class mail (airmail in the case of
international communications) to each recordholder of Shares (a "STOCKHOLDER")
entitled to vote thereat, not less than 10 nor more than 60 days before the date
of such meeting. If mailed, such notice shall be deemed to be given when
deposited in the United States mail, postage prepaid, directed to the
Stockholder at such Stockholder's address as it appears on the records of the
Corporation. If, prior to the time of mailing, the Secretary shall have received
from any Stockholder a written request that notices intended for such
Stockholder are to be mailed to some address other than the address that appears
on the records of the Corporation, notices intended for such Stockholder shall
be mailed to the address designated in such request.
(b) Notice of a special meeting of Stockholders may be given
by the person or persons calling the meeting, or, upon the written request of
such person or persons, such notice shall be given by the Secretary on behalf of
such person or persons. If the person or persons calling a special meeting of
Stockholders give notice thereof, such person or persons shall deliver a copy of
such notice to the Secretary. Each request to the Secretary for the giving of
notice of a special meeting of Stockholders shall state the purpose or purposes
of such meeting.
SECTION 2.04. WAIVER OF NOTICE. Notice of any annual or
special meeting of Stockholders need not be given to any Stockholder who files a
written waiver of notice with the Secretary, signed by the person entitled to
notice, whether before or after such meeting. Neither the business to be
transacted at, nor the purpose of, any meeting of Stockholders need be specified
in any written waiver of notice thereof. Attendance of a Stockholder at a
meeting, in person or by proxy, shall constitute a waiver of notice of such
meeting, except when such Stockholder attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the grounds that the notice of such meeting was inadequate or
improperly given.
SECTION 2.05. ADJOURNMENTS. Whenever a meeting of
Stockholders, annual or special, is adjourned to another date, time or place,
notice need not be given of the adjourned meeting if the date, time and place
thereof are announced at the meeting at which the adjournment is taken. If the
adjournment is for more than 30 days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall
be given to each Stockholder entitled to vote thereat. At the adjourned meeting,
any business may be transacted which might have been transacted at the original
meeting.
SECTION 2.06. QUORUM. Except as otherwise provided by law or
the Amended and Restated Certificate of Incorporation of the Corporation (the
"CERTIFICATE OF INCORPORATION"), the recordholders of a majority of the Shares
entitled to vote thereat, present in person or by proxy, shall constitute a
quorum for the transaction of business at all meetings of Stockholders,
whether annual or special. If, however, such quorum shall not be present in
person or by proxy at any meeting of Stockholders, the Stockholders entitled to
vote thereat may adjourn the meeting from time to time in accordance with
Section 2.05 hereof until a quorum shall be present in person or by proxy.
SECTION 2.07. VOTING. Each holder of common stock of the
Corporation (the "COMMON STOCK") shall be entitled to one vote for each share of
Common Stock held of record by such Stockholder. Each holder of preferred stock
of the Corporation (the "PREFERRED STOCK") shall be entitled to one vote for
each share of Common Stock into which each such share of Preferred Stock held of
record by such Stockholder is convertible. Except as otherwise provided by law,
these By-laws, the Certificate of Incorporation or the Second Amended and
Restated Stockholders' Agreement dated as of March 16, 2000, among the
Corporation and the Stockholders (the "STOCKHOLDERS' AGREEMENT"), when a quorum
is present at any meeting of Stockholders, the vote of the recordholders of a
majority of the Shares constituting such quorum shall decide any question
brought before such meeting.
SECTION 2.08. PROXIES. Each Stockholder entitled to vote at a
meeting of Stockholders or to express, in writing, consent to or dissent from
any action of Stockholders without a meeting may authorize another person or
persons to act for such Stockholder by proxy. Such proxy shall be filed with the
Secretary before such meeting of Stockholders or such action of Stockholders
without a meeting, at such time as the Board may require. No proxy shall be
voted or acted upon more than three years from its date, unless the proxy
provides for a longer period.
SECTION 2.09. STOCKHOLDERS' CONSENT IN LIEU OF MEETING. Any
action required by the General Corporation Law to be taken at any annual or
special meeting of Stockholders, and any action which may be taken at any annual
or special meeting of 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 the recordholders of Shares having not less
than the minimum number of votes necessary to authorize or take such action at a
meeting at which the recordholders of all Shares entitled to vote thereon were
present and voted.
SECTION 2.10. CLASS VOTING. (a) SERIES F PREFERRED STOCK.
Where the holders of the Series F Preferred Stock of the Corporation (the
"SERIES F PREFERRED STOCK") are given the right, under these By-laws, the
Certificate of Incorporation or the Stockholders' Agreement, to vote separately
as a class, the following shall apply:
(i) Each holder of Series F Preferred Stock shall be
entitled to one vote for each share of Series F Preferred Stock held of
record by such Stockholder.
(ii) Holders of the Series F Preferred Stock may
exercise their class voting rights at any annual or special meeting of
the Stockholders held pursuant to Sections 2.01 and 2.02, respectively,
of these By-laws. Special meetings of the holders of the Series F
Preferred Stock may be called by the Secretary upon the written request
of any holder or holders of Series F Preferred Stock holding more than
10% of the shares of
Series F Preferred Stock, such special meeting to be held at such
place, date and time as shall be designated in the notice or waiver of
notice thereof. If a special meeting of the holders of the Series F
Preferred Stock is not called by the Secretary within 10 days after
personal service of a written request to call such special meeting,
then any holder or holders of Series F Preferred Stock holding more
than 10% of the shares of Series F Preferred Stock may designate in
writing one other holder of Series F Preferred Stock to call such
special meeting at the expense of the Corporation. Any holder of Series
F Preferred Stock so designated shall have reasonable access to the
stock books of the Corporation relating to the Series F Preferred Stock
for the sole purpose of calling a meeting of the holders of the Series
F Preferred Stock as provided herein.
(iii) Written notice of each meeting of the holders
of Series F Preferred Stock shall be provided as required under Section
2.03 hereof.
(iv) The presence, in person or by proxy, of the
recordholders of a majority of the Series F Preferred shares entitled
to vote at a meeting called pursuant to this Section 2.10(a) shall
constitute a quorum for the transaction of business at any such
meeting.
(v) Actions required to be taken at any meeting of
the holders of Series F Preferred Stock 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 recordholders of
Series F Preferred Stock representing at least a majority of the
outstanding shares of Series F Preferred Stock.
(b) SERIES E PREFERRED STOCK. Where the holders of the Series
E Preferred Stock of the Corporation (the "SERIES E PREFERRED STOCK") are given
the right, under these By-laws, the Certificate of Incorporation or the
Stockholders' Agreement, to vote separately as a class, the following shall
apply:
(i) Each holder of Series E Preferred Stock shall be
entitled to one vote for each share of Series E Preferred Stock held of
record by such Stockholder.
(ii) Holders of the Series E Preferred Stock may
exercise their class voting rights at any annual or special meeting of
the Stockholders held pursuant to Sections 2.01 and 2.02, respectively,
of these By-laws. Special meetings of the holders of the Series E
Preferred Stock may be called by the Secretary upon the written request
of any holder or holders of Series E Preferred Stock holding more than
10% of the shares of Series E Preferred Stock, such special meeting to
be held at such place, date and time as shall be designated in the
notice or waiver of notice thereof. If a special meeting of the holders
of the Series E Preferred Stock is not called by the Secretary within
10 days after personal service of a written request to call such
special meeting, then any holder or holders of Series E Preferred Stock
holding more than 10% of the shares of Series E Preferred Stock may
designate in writing one other holder of Series E Preferred Stock to
call such special meeting at the expense of the Corporation. Any holder
of Series E
Preferred Stock so designated shall have reasonable access to the stock
books of the Corporation relating to the Series E Preferred Stock for
the sole purpose of calling a meeting of the holders of the Series E
Preferred Stock as provided herein.
(iii) Written notice of each meeting of the holders
of Series E Preferred Stock shall be provided as required under Section
2.03 hereof.
(iv) The presence, in person or by proxy, of the
recordholders of a majority of the Series E Preferred shares entitled
to vote at a meeting called pursuant to this Section 2.10(a) shall
constitute a quorum for the transaction of business at any such
meeting.
(v) Actions required to be taken at any meeting of
the holders of Series E Preferred Stock 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 recordholders of
Series E Preferred Stock representing at least a majority of the
outstanding shares of Series E Preferred Stock.
(c) SERIES D PREFERRED STOCK. Where the holders of the Series
D Preferred Stock of the Corporation (the "SERIES D PREFERRED STOCK") are given
the right, under these By-laws, the Certificate of Incorporation or the
Stockholders' Agreement, to vote separately as a class, the following shall
apply:
(i) Each holder of Series D Preferred Stock shall be
entitled to one vote for each share of Series D Preferred Stock held of
record by such Stockholder.
(ii) Holders of the Series D Preferred Stock may
exercise their class voting rights at any annual or special meeting of
the Stockholders held pursuant to Sections 2.01 and 2.02, respectively,
of these By-laws. Special meetings of the holders of the Series D
Preferred Stock may be called by the Secretary upon the written request
of any holder or holders of Series D Preferred Stock holding more than
10% of the shares of Series D Preferred Stock, such special meeting to
be held at such place, date and time as shall be designated in the
notice or waiver of notice thereof. If a special meeting of the holders
of the Series D Preferred Stock is not called by the Secretary within
10 days after personal service of a written request to call such
special meeting, then any holder or holders of Series D Preferred Stock
holding more than 10% of the shares of Series D Preferred Stock may
designate in writing one other holder of Series D Preferred Stock to
call such special meeting at the expense of the Corporation. Any holder
of Series D Preferred Stock so designated shall have reasonable access
to the stock books of the Corporation relating to the Series D
Preferred Stock for the sole purpose of calling a meeting of the
holders of the Series D Preferred Stock as provided herein.
(iii) Written notice of each meeting of the holders
of Series D Preferred Stock shall be provided as required under Section
2.03 hereof
(iv) The presence, in person or by proxy, of the
recordholders of a majority of the Series D Preferred shares entitled
to vote at a meeting called pursuant to this Section 2.10(a) shall
constitute a quorum for the transaction of business at any such
meeting.
(v) Actions required to be taken at any meeting of
the holders of Series D Preferred Stock 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 recordholders of
Series D Preferred Stock representing at least two-thirds of the
outstanding shares of Series D Preferred Stock.
(d) COMMON STOCK. Where the holders of Common Stock are given
the right, under these By-laws, the Certificate of Incorporation or the
Stockholders' Agreement, to vote separately as a class, the following shall
apply:
(i) Each holder of Common Stock shall be entitled to
one vote for each share of Common Stock held of record by such
Stockholder.
(ii) Holders of the Common Stock may exercise their
class voting rights at any annual or special meeting of the
Stockholders held pursuant to Sections 2.01 and 2.02, respectively, of
these By-laws. Special meetings of the holders of the Common Stock may
be called by the Secretary upon the written request of any holder or
holders of Common Stock holding more than 10%of the shares of Common
Stock, such special meeting to be held at such place, date and time as
shall be designated in the notice or waiver of notice thereof. If a
special meeting of the holders of the Common Stock is not called by the
Secretary within 10 days after personal service of a written request to
call such special meeting, then any holder or holders of Common Stock
holding more than 10% of the shares of Common Stock may designate in
writing one other holder of Common Stock to call such special meeting
at the expense of the Corporation. Any holder of Common Stock so
designated shall have reasonable access to the stock books of the
Corporation relating to the Common Stock for the sole purpose of
calling a meeting of the holders of the Common Stock as provided
herein.
(iii) Written notice of each meeting of the holders
of Common Stock shall be provided as required under Section 2.03
hereof.
(iv) The presence, in person or by proxy, of the
recordholders of a majority of the Common Stock entitled to vote at a
meeting called pursuant to this Section 2.10(b) shall constitute a
quorum for the transaction of business at any such meeting.
(v) Actions required to be taken at any meeting of
the holders of Common Stock 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 recordholders
of Common Stock representing at least a majority of the outstanding
shares of Common Stock.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.01. GENERAL POWERS. The business and affairs of the
Corporation 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 law, the
Certificate of Incorporation or these By-laws directed or required to be
exercised or done by Stockholders.
SECTION 3.02. NUMBER AND TERM OF OFFICE. From the period
beginning on the effective date of these By-laws and ending on October 4, 2000,
the number of Directors shall be nine. Thereafter, the number of Directors shall
be eight or such other number as shall be fixed from time to time by the Board
with the consent of the holders of at least a majority of the Series E Preferred
Stock and the holders of at least two-thirds of the Series D Preferred Stock.
Directors need not be Stockholders. Directors shall be elected at the annual
meeting of Stockholders or, if, in accordance with Section 2.01 hereof, no such
annual meeting is held, by written consent in lieu of meeting pursuant to
Section 2.09 hereof, and 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 3.03. DESIGNATION; ELECTION. (a) The Directors shall
be designated as follows:
(i) two Directors shall be designated by the holders
of at least a majority of the then outstanding Common Stock (voting
separately as a class without the holders of Preferred Stock);
(ii) three Directors shall be designated by the
holders of at least two-thirds of the then outstanding Series D
Preferred Stock;
(iii) one Director shall be designated by mutual
agreement of (A) the holders of at least a majority of the then
outstanding Common Stock (voting separately as a class without the
holders of Preferred Stock), on the one hand, and (B) at least
two-thirds of the then outstanding Series D Preferred Stock on the
other hand;
(iv) one independent Director shall be designated by
at least a majority of the Board and approved by at least a majority of
the then outstanding Shares;
(v) one Director shall be designated by Amazon.com,
Inc. ("AMAZON"); provided that Amazon holds at least 6,500,542 Shares
on an as-converted
basis, and provided further that such Share ownership represents at
least 5% of the Shares then outstanding on an as-converted,
fully-diluted basis; and
(vi) one Director shall be designated by the holders
of at least a majority of the then outstanding Series B Preferred Stock
of the Corporation, which Director shall serve until October 4, 2000,
on which date such Director shall resign from the Board.
(b) The Stockholders shall vote to elect the persons
designated according to Section 3.03(a), either at a meeting held for the
election of Directors or, if no such meeting is held, by written consent
pursuant to Section 2.09 hereof.
SECTION 3.04. RESIGNATION. Any Director may resign at any time
by giving written notice to the Board, the Chairman or the Secretary. Such
resignation shall take effect at the time specified in such notice or, if the
time be not specified, upon receipt thereof by the Board, the Chairman or the
Secretary, as the case may be. Unless otherwise specified therein, acceptance of
such resignation shall not be necessary to make it effective.
SECTION 3.05. REMOVAL. (a) Each group of Stockholders entitled
to designate Directors pursuant to Section 3.03(a) may at any time, by the same
vote required under Section 3.03(a), vote to remove any Director designated by
such group, with or without cause.
(b) The Stockholders shall vote to remove any Director with
respect to whom removal has been voted pursuant to Section 3.05(a), either at a
meeting held for such purpose or, if no such meeting is held, by written consent
pursuant to Section 2.09 hereof.
SECTION 3.06. VACANCIES. (a) Each group of Stockholders
entitled to designate Directors pursuant to Section 3.03(a) hereof may, by at
least the vote required by Section 3.03(a), designate a director to fill a
vacancy occurring for any reason with respect to the seat of a Director
designated by such group. Such action may be taken at any annual or special
meeting of the Stockholders or at a special meeting called by the group, in each
case in accordance with the class voting provisions contained in Section 2.10 of
these By-laws.
(b) The Stockholders shall vote to fill any vacancy occurring
on the Board with the person designated pursuant to Section 3.06(a), either at a
meeting held for such purpose or, if no such meeting is held, by written consent
pursuant to Section 2.09 hereof.
(c) Vacancies occurring on the Board shall be filled within 10
days of the date such vacancy is created or immediately before the first action
to be taken by the Board after the date such vacancy is created. Unless earlier
removed pursuant to Section 3.05 hereof or as otherwise provided in the
Stockholders' Agreement, each Director chosen in accordance with this Section
3.06 shall hold office until the next annual election of Directors by the
Stockholders and until his successor shall be elected and qualified.
SECTION 3.07. MEETINGS. (a) ANNUAL MEETINGS. As soon as
practicable after each annual election of Directors by the Stockholders, 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 3.08 hereof.
(b) QUARTERLY MEETINGS. Quarterly meetings of the Board shall
be held on such dates as the Chairman, the President, the Secretary or a
majority of the Board shall determine.
(c) NOTICE OF MEETINGS. The Secretary shall give written
notice to each Director of each meeting of the Board, which notice shall state
the place, date, time and purpose of such meeting. Notice of each such meeting
shall be given to each Director, if by mail, 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 telecopy,
telegraph, cable, 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. A written waiver of notice, signed by the Director
entitled to notice, whether before or after the time of the meeting referred to
in such waiver, shall be deemed equivalent to notice. Neither the business to be
transacted at, nor the purpose of any meeting of the Board need be specified in
any written waiver of notice thereof. Attendance of a Director at a meeting of
the Board shall constitute a waiver of notice of such meeting, except as
provided by law.
(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 or the
Chairman may from time to time determine, or as shall be designated in the
respective notices or waivers of notice of such meetings.
(e) QUORUM AND MANNER OF ACTING. One-third of the total number
of Directors then in office (but in no event less than two if the total number
of directorships, including vacancies, is greater than one and in no event a
number less than one-third of the total number of directorships, including
vacancies) 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, these By-laws, the
Certificate of Incorporation or the Stockholders' Agreement. 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;
(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 of
the meeting shall appoint shall act as secretary of such meeting and keep the
minutes thereof.
SECTION 3.08. COMMITTEES OF THE BOARD. (a) The Board may, by
resolution passed by a majority of the whole Board, designate one or more
committees, each committee to consist of one or more Directors. The Board may
designate one or more Directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of such committee. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another Director
to act at the meeting in the place of any such absent or disqualified member.
Any committee of the Board, to the extent provided in the resolution of the
Board designating such committee, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; PROVIDED, HOWEVER, that no such committee shall
have such power or authority in reference to amending the Certificate of
Incorporation (except that such a committee may, to the extent authorized in the
resolution or resolutions providing for the issuance of shares of stock adopted
by the Board as provided in Section 151(a) of the General Corporation Law, fix
the designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes of stock of the Corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or consolidation under
Section 251 or 252 of the General Corporation Law, recommending to the
Stockholders the sale, lease or exchange of all or substantially all the
Corporation's property and assets, recommending to the Stockholders a
dissolution of the Corporation or the revocation of a dissolution, or amending
these By-laws; PROVIDED FURTHER, HOWEVER, that, unless expressly so provided in
the resolution of the Board designating such committee, no such committee shall
have the power or authority to declare a dividend, to authorize the issuance of
stock, or to adopt a certificate of ownership and merger pursuant to Section 253
of the General Corporation Law. Each committee of the Board shall keep regular
minutes of its proceedings and report the same to the Board when so requested by
the Board.
(b) COMPENSATION COMMITTEE. The Board shall designate up to
three non-management Directors to serve on the Compensation Committee of the
Board. Two such Directors shall be Directors designated pursuant to Sections
3.03(a)(ii) and 3.03(a)(iii).
(c) AUDIT COMMITTEE. The Board shall designate up to three
non-management Directors to serve on the Audit Committee of the Board. Two such
Directors shall be Directors designated pursuant to Section 3.03(a)(ii).
SECTION 3.09. DIRECTORS' CONSENT IN LIEU OF MEETING. 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, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by all the members of the Board or such committee and such
consent is filed with the minutes of the proceedings of the Board or such
committee.
SECTION 3.10. ACTION BY MEANS OF TELEPHONE OR SIMILAR
COMMUNICATIONS EQUIPMENT. Any one or more members of the Board, or of any
committee thereof, may participate in a meeting of the Board or 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.
SECTION 3.11. COMPENSATION. Unless otherwise restricted by the
Certificate of Incorporation, the Board may determine the compensation of
Directors. In addition, as determined by the Board, Directors may be reimbursed
by the Corporation for their expenses, if any, in the performance of their
duties as Directors. No such compensation or reimbursement shall preclude any
Director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
OFFICERS
SECTION 4.01. OFFICERS. The officers of the Corporation shall
be the Chief Executive Officer, President, Chief Financial Officer, Chief
Operating Officer, Chief Technology Officer and Secretary and may include a
Chairman, a Treasurer, one or more Vice Presidents, one or more Assistant
Secretaries and one or more Assistant Treasurers, as such other officers or the
Chief Executive Officer may designate. Any two or more offices may be held by
the same person.
SECTION 4.02. AUTHORITY AND DUTIES. All officers 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
resolution of the Board.
SECTION 4.03. TERM OF OFFICE, RESIGNATION AND REMOVAL. (a)
Each officer shall be appointed by the Board and shall hold office for such term
as may be determined by the Board. Each officer shall hold office until his
successor has been appointed and 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.
(b) Any officer may resign at any time by giving written
notice to the Board, the Chairman, the President or the Secretary. Such
resignation shall take effect at the time specified in such notice or, if the
time be not specified, upon receipt thereof by the Board, the
Chairman, the President or the Secretary, as the case may be. Unless otherwise
specified therein, acceptance of such resignation shall not be necessary to make
it effective.
(c) All officers and agents appointed by the Board shall be
subject to removal, with or without cause, at any time by the Board or by the
action of the recordholders of a majority of the Shares entitled to vote
thereon.
SECTION 4.04. VACANCIES. Any vacancy occurring in any office
of the Corporation, for any reason, shall be filled by action of the Board.
Unless earlier removed pursuant to Section 4.03 hereof, any officer appointed by
the Board to fill any such vacancy shall serve only until such time as the
unexpired term of his predecessor expires unless reappointed by the Board.
SECTION 4.05. THE CHIEF EXECUTIVE OFFICER. Subject to the
direction of the Board, the Chief Executive Officer shall exercise general
direction and supervision of the business and affairs of the Corporation and
shall perform such other duties as from time to time may be assigned to him by
the Board of Directors. Subject to the direction of the Board, the Chief
Executive Officer shall have general authority to sign all certificates,
contracts, obligations and other instruments of the Corporation; to execute
bonds, deeds, mortgages and contracts in the name and on behalf of the
Corporation; to sign stock certificates; to cause the employment or appointment
of such employees and agents of the Corporation (other than officers) as the
conduct of the business of the Corporation may require; to remove or suspend any
employee or agent who shall not have been appointed by the Board; to suspend for
cause, pending final action by the authority which shall have elected or
appointed him, any officer or any employee or agent who shall have been elected
or appointed by the Board; and, in general, shall perform all duties incident to
the office of Chief Executive Officer. In the absence of the Chairman, he shall
preside at all meetings of the Board of Directors and the Stockholders.
SECTION 4.06. THE PRESIDENT. The President shall have general
and active management and control of the business and affairs of the
Corporation, subject to the direction of the Chief Executive Officer and the
Board, and shall see that all orders and resolutions of the Board are carried
into effect. Subject to the direction of the Chief Executive Officer and the
Board, the President shall have general authority to sign all certificates,
contracts, obligations and other instruments of the Corporation; to execute
bonds, deeds, mortgages and contracts in the name and on behalf of the
Corporation; to sign stock certificates; to cause the employment or appointment
of such employees and agents of the Corporation (other than officers) as the
conduct of the business of the Corporation may require; to remove or suspend any
employee or agent who shall not have been appointed by the Board; to suspend for
cause, pending final action by the authority which shall have elected or
appointed him, any officer or any employee or agent who shall have been elected
or appointed by the Board. The President shall perform all duties incident to
the office of President and all such other duties as may from time to time be
assigned to him by the Chief Executive Officer or the Board.
SECTION 4.07. THE CHIEF OPERATING OFFICER. Subject to the
direction of the Chief Executive Officer, the President and the Board, the Chief
Operating Officer shall direct
and supervise the operations of the Corporation and perform such other duties as
may be assigned to him from time to time by the Chief Executive Officer, the
President or the Board. Subject to the direction of the Chief Executive Officer,
the President and the Board, the Chief Operating Officer shall have general
authority to execute bonds, deeds, mortgages and contracts in the name and on
behalf of the Corporation; to sign stock certificates; to cause the employment
or appointment of such employees and agents of the Corporation (other than
officers) as the conduct of the business of the Corporation may require; to
remove or suspend any employee or agent who shall not have been appointed by the
Board; to suspend for cause, pending final action by the authority which shall
have elected or appointed him, any officer or any employee or agent who shall
have been elected or appointed by the Board; and, in general, shall perform all
duties incident to the office of Chief Operating Officer.
SECTION 4.08. THE CHIEF FINANCIAL OFFICER. Subject to the
direction of the Chief Executive Officer, the President and the Board, the Chief
Financial Officer shall keep or cause to be kept all books of account and
accounting records of the Corporation and shall keep and maintain, or cause to
be kept and maintained, adequate and correct accounts of the properties and
business transactions of the Corporation. Subject to the direction of the Chief
Executive Officer, the President and the Board, the Chief Financial Officer
shall prepare or cause to be prepared appropriate financial statements for the
Corporation, shall perform such other duties as may be assigned to him or her by
the Chief Executive Officer, the President or the Board and, in general, shall
perform all duties incident to the office of Chief Financial Officer.
SECTION 4.09. THE CHIEF TECHNOLOGY OFFICER. Subject to the
direction of the Chief Executive Officer, the President and the Board, the Chief
Technology Officer shall have general and active management and control of the
information technology and systems of the Corporation. Subject to the direction
of the Chief Executive Officer, the President and the Board, the Chief
Technology Officer shall perform all duties incident to the office of Chief
Technology Officer and all such other duties as may from time to time be
assigned to him by the Chief Executive Officer, the President or the Board.
SECTION 4.10. THE SECRETARY. The Secretary shall, to the
extent practicable, attend all meetings of the Board and all meetings of
Stockholders and shall record all votes and the minutes of all proceedings in a
book to be kept for that purpose, and shall perform the same duties for any
committee of the Board when so requested by such committee. The Secretary shall
give or cause to be given notice of all meetings of Stockholders and of the
Board, shall perform such other duties as may be prescribed by the Chief
Executive Officer or the Board and shall act under the supervision of the Chief
Executive Officer. The Secretary shall keep in safe custody the seal of the
Corporation and affix the same to any instrument that requires that the seal be
affixed to it and which shall have been duly authorized for signature in the
name of the Corporation and, when so affixed, the seal shall be attested by the
Secretary's signature or by the signature of the Treasurer of the Corporation or
an Assistant Secretary or Assistant Treasurer of the Corporation. The Secretary
shall keep in safe custody the certificate books and stockholder records and
such other books and records of the Corporation as the Chief Executive Officer
or the Board may direct and shall perform all other duties incident to the
office of Secretary and
such other duties as from time to time may be assigned to him or her by the
Chief Executive Officer or the Board.
SECTION 4.11. THE CHAIRMAN. The Chairman shall have the power
to call special meetings of Stockholders, to call special meetings of the Board
and, if present, to preside at all meetings of Stockholders and all meetings of
the Board. The Chairman shall perform all duties incident to the office of
Chairman of the Board and all such other duties as may from time to time be
assigned to the Chairman by the Board or these By-laws.
SECTION 4.12. VICE PRESIDENTS. Vice Presidents, if any, in
order of their seniority or in any other order determined by the Board, shall
generally assist the Chief Executive Officer and the President and perform such
other duties as the Chief Executive Officer, the President or the Board shall
prescribe, and in the absence or disability of the President, shall perform the
duties and exercise the powers of the President.
SECTION 4.13. ASSISTANT SECRETARIES. Assistant Secretaries of
the Corporation ("ASSISTANT SECRETARIES"), if any, in order of their seniority
or in any other order determined by the Board, shall generally assist the
Secretary and perform such other duties as the Board or the Secretary shall
prescribe, and, in the absence or disability of the Secretary, shall perform the
duties and exercise the powers of the Secretary.
SECTION 4.14. THE TREASURER. The Treasurer shall have the care
and custody of all the funds of the Corporation and shall deposit such funds in
such banks or other depositories as the Board, or any officer or officers, or
any officer and agent jointly, duly authorized by the Board, shall, from time to
time, direct or approve. The Treasurer shall disburse the funds of the
Corporation under the direction of the Chief Executive Officer, the President
and the Board. The Treasurer shall keep a full and accurate account of all
moneys received and paid on account of the Corporation and shall render a
statement of his accounts whenever the Chief Executive Officer, the President or
the Board shall so request. The Treasurer shall perform all other necessary
actions and duties in connection with the administration of the financial
affairs of the Corporation and shall generally perform all the duties usually
appertaining to the office of treasurer of a corporation. When required by the
Board, the Treasurer shall give bonds for the faithful discharge of his duties
in such sums and with such sureties as the Board shall approve.
SECTION 4.15. ASSISTANT TREASURERS. Assistant Treasurers of
the Corporation ("ASSISTANT TREASURERS"), if any, in order of their seniority or
in any other order determined by the Board, shall generally assist the Treasurer
and perform such other duties as the Board or the Treasurer shall prescribe,
and, in the absence or disability of the Treasurer, shall perform the duties and
exercise the powers of the Treasurer.
ARTICLE V
CHECKS, DRAFTS, NOTES, AND PROXIES
SECTION 5.01. CHECKS, DRAFTS AND NOTES. All checks, drafts and
other orders for the payment of money, notes and other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officer or
officers, agent or agents of the Corporation and in such manner as shall be
determined, from time to time, by resolution of the Board.
SECTION 5.02. EXECUTION OF PROXIES. The Chairman or the
President, or, in the absence or disability of both of them, any Vice President,
may authorize, from time to time, the execution and issuance of proxies to vote
shares of stock or other securities of other corporations held of record by the
Corporation and the execution of consents to action taken or to be taken by any
such corporation. All such proxies and consents, unless otherwise authorized by
the Board, shall be signed in the name of the Corporation by the Chairman, the
President or any Vice President.
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
SECTION 6.01. CERTIFICATES EVIDENCING SHARES. Shares shall be
evidenced by certificates in such form or forms as shall be approved by the
Board. Certificates shall be issued in consecutive order and shall be numbered
in the order of their issue, and shall be signed by the Chairman, the President
or any Vice President and by the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. If such a certificate is manually signed
by one such officer, any other signature on the certificate may be a facsimile.
In the event any such officer who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to hold such office or to be
employed by the Corporation before such certificate is issued, such certificate
may be issued by the Corporation with the same effect as if such officer had
held such office on the date of issue.
SECTION 6.02. STOCK LEDGER. A stock ledger in one or more
counterparts shall be kept by the Secretary, in which shall be recorded the name
and address of each person, firm or corporation owning the Shares evidenced by
each certificate evidencing Shares issued by the Corporation, the number of
Shares evidenced by each such certificate, the date of issuance thereof and, in
the case of cancellation, the date of cancellation. Except as otherwise
expressly required by law, the person in whose name Shares stand on the stock
ledger of the Corporation shall be deemed the owner and recordholder thereof for
all purposes.
SECTION 6.03. TRANSFERS OF SHARES. Registration of transfers
of Shares shall be made only in the stock ledger of the Corporation upon request
of the registered holder of such shares, or of his attorney thereunto authorized
by power of attorney duly executed and filed with
the Secretary, and upon the surrender of the certificate or certificates
evidencing such Shares properly endorsed or accompanied by a stock power duly
executed, together with such proof of the authenticity of signatures as the
Corporation may reasonably require.
SECTION 6.04. ADDRESSES OF STOCKHOLDERS. Each Stockholder
shall designate to the Secretary an address at which notices of meetings and all
other corporate notices may be served or mailed to such Stockholder, and, if any
Stockholder shall fail to so designate such an address, corporate notices may be
served upon such Stockholder by mail directed to the mailing address, if any, as
the same appears in the stock ledger of the Corporation or at the last known
mailing address of such Stockholder.
SECTION 6.05. LOST, DESTROYED AND MUTILATED CERTIFICATES. Each
recordholder of Shares shall promptly notify the Corporation of any loss,
destruction or mutilation of any certificate or certificates evidencing any
Share or Shares of which he is the recordholder. The Board may, in its
discretion, cause the Corporation to issue a new certificate in place of any
certificate theretofore issued by it and alleged to have been mutilated, lost,
stolen or destroyed, upon the surrender of the mutilated certificate or, in the
case of loss, theft or destruction of the certificate, upon satisfactory proof
of such loss, theft or destruction, and the Board may, in its discretion,
require the recordholder of the Shares evidenced by the lost, stolen or
destroyed certificate or his legal representative to give the Corporation a bond
sufficient to indemnify the Corporation against any claim made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
SECTION 6.06. REGULATIONS. The Board may make such other rules
and regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates evidencing
Shares.
SECTION 6.07. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF
RECORD. In order that the Corporation may determine the Stockholders entitled to
notice of or to vote at any meeting of Stockholders or any adjournment thereof,
or to express consent to, or to dissent from, 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 60 nor less than 10 days before the date of such meeting,
nor more than 60 days prior to any other such action. A determination of the
Stockholders entitled to notice of or to vote at a meeting of Stockholders shall
apply to any adjournment of such meeting; PROVIDED, HOWEVER, that the Board may
fix a new record date for the adjourned meeting.
ARTICLE VII
SEAL
SECTION 7.01. SEAL. The Board may approve and adopt a
corporate seal, which shall be in the form of a circle and shall bear the full
name of the Corporation, the year of its incorporation and the words "Corporate
Seal Delaware".
ARTICLE VIII
FISCAL YEAR
SECTION 8.01. FISCAL YEAR. The fiscal year of the Corporation
shall end on the thirty-first day of December of each year unless changed by
resolution of the Board.
ARTICLE IX
AMENDMENTS
SECTION 9.01. AMENDMENTS. Subject to the rights of the holders
of the Series F Preferred Stock, Series E Preferred Stock and Series D Preferred
Stock set forth in Section 3 of Article III of the Certificate of Incorporation,
any By-law (including these By-laws) may be adopted, amended or repealed by the
vote of the recordholders of a majority of the Shares then entitled to vote at
an election of Directors or by written consent of Stockholders pursuant to
Section 2.09 hereof, or by vote of the Board or by a written consent of
Directors pursuant to Section 3.09 hereof.
AMENDED AND RESTATED BY-LAWS
OF
KOZMO.COM, INC.
TABLE OF CONTENTS
[Download Table]
SECTION PAGE
ARTICLE I
OFFICES
1.01. Registered Office ................................................ 1
1.02. Other Offices .................................................... 1
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.01. Annual Meetings .................................................. 1
2.02. Special Meetings ................................................. 1
2.03. Notice of Meetings ............................................... 2
2.04. Waiver of Notice ................................................. 2
2.05. Adjournments ..................................................... 2
2.06. Quorum ........................................................... 3
2.07. Voting ........................................................... 3
2.08. Proxies .......................................................... 3
2.09. Stockholders' Consent in Lieu of Meeting ......................... 3
2.10. Class Voting ..................................................... 3
ARTICLE III
BOARD OF DIRECTORS
3.01. General Powers ................................................... 6
3.02. Number and Term of Office ........................................ 6
3.03. Designation; Election ............................................ 7
3.04. Resignation ...................................................... 7
3.05. Removal .......................................................... 8
3.06. Vacancies ........................................................ 8
3.07. Meetings ......................................................... 8
3.08. Committees of the Board .......................................... 9
3.09. Directors' Consent in Lieu of Meeting ............................ 10
SECTION PAGE
3.10. Action by Means of Telephone or Similar Communications Equipment.. 10
3.11. Compensation ..................................................... 11
ARTICLE IV
OFFICERS
4.01. Officers ......................................................... 11
4.02. Authority and Duties ............................................. 11
4.03. Term of Office, Resignation and Removal .......................... 11
4.04. Vacancies ........................................................ 12
4.05. The Chief Executive Officer ...................................... 12
4.06. The President .................................................... 12
4.07. The Chief Operating Officer ...................................... 12
4.08. The Chief Financial Officer ..................................... 13
4.09 The Chief Technology Officer .................................... 13
4.10. The Secretary .................................................... 13
4.11. The Chairman .................................................... 14
4.12. Vice Presidents ................................................. 14
4.13. Assistant Secretaries ............................................ 14
4.14. The Treasurer .................................................... 14
4.15. Assistant Treasurers ............................................. 14
ARTICLE V
CHECKS, DRAFTS, NOTES, AND PROXIES
5.01. Checks, Drafts and Notes ......................................... 15
5.02. Execution of Proxies ............................................. 15
ARTICLE VI
SHARES AND TRANSFERS OF SHARES
6.01. Certificates Evidencing Shares ................................... 15
6.02. Stock Ledger ..................................................... 15
6.03. Transfers of Shares .............................................. 16
6.04. Addresses of Stockholders ........................................ 16
6.05. Lost, Destroyed and Mutilated Certificates ....................... 16
6.06. Regulations ...................................................... 16
6.07. Fixing Date for Determination of Stockholders of Record .......... 16
SECTION PAGE
ARTICLE VII
SEAL
7.01. Seal ............................................................. 17
ARTICLE VIII
FISCAL YEAR
8.01. Fiscal Year ...................................................... 17
ARTICLE IX
AMENDMENTS
9.01. Amendments ........................................................ 17
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 10/4/00 | | 7 | | 8 | | | None on these Dates |
| Filed as of: | | 3/21/00 |
| Filed on: | | 3/20/00 |
| | 3/16/00 | | 1 | | 3 |
| List all Filings |
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