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Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
OF
GRAFTECH INC.
_______________, 2000
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TABLE OF CONTENTS
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Page
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ARTICLE I - MEETINGS OF STOCKHOLDERS..................................................1
Section 1. Place of Meetings.....................................................1
Section 2. Annual Meeting........................................................1
Section 3. Special Meetings......................................................1
Section 4. Record Date...........................................................1
Section 5. Notice of Meetings; Waiver............................................2
Section 6. List of Stockholders..................................................3
Section 7. Quorum; Manner of Acting..............................................3
Section 8. Business Transacted...................................................4
Section 9. Order of Business; Voting.............................................6
Section 10. Inspectors............................................................7
ARTICLE II - BOARD OF DIRECTORS........................................................8
Section 1. Powers; Qualifications; Number; Election..............................8
Section 2. Term of Office of a Director..........................................8
Section 3. Resignations; Filling of Vacancies....................................8
Section 4. Meetings of the Board; Notice; Waiver.................................8
Section 5. Quorum; Adjournment...................................................9
Section 6. Manner of Acting......................................................9
Section 7. Annual Meeting of Directors..........................................10
Section 8. Participation in Meeting by Telephone................................10
Section 9. Compensation and Expenses of Directors...............................10
ARTICLE III - COMMITTEES OF THE BOARD..................................................10
Section 1. Regular Committees...................................................10
Section 2. Regular Committee Powers.............................................11
Section 3. Advisory Committees..................................................11
Section 4. Procedures...........................................................11
ARTICLE IV - OFFICERS.................................................................12
Section 1. Officers.............................................................12
Section 2. President............................................................12
Section 3. Vice Presidents......................................................13
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Section 4. Treasurer............................................................13
Section 5. Secretary............................................................13
Section 6. Additional Officers and Appointed Officers...........................13
Section 7. Removal..............................................................14
Section 8. Resignations.........................................................14
Section 9. Giving of Bond by Officers...........................................14
Section 10. Compensation of Officers.............................................14
Section 11. Term of Office.......................................................15
Section 12. Voting Stock Held by Corporation.....................................15
ARTICLE V - INDEMNIFICATION..........................................................15
Section 1. Indemnification......................................................15
Section 2. Indemnification Not Exclusive........................................16
Section 3. Successors...........................................................17
Section 4. Insurance............................................................17
Section 5. Definition of Certain Terms..........................................17
ARTICLE VI - CONTRACTS; BANK ACCOUNTS; PROXIES........................................17
Section 1. Execution of Contracts...............................................17
Section 2. Checks; Drafts; Notes................................................18
Section 3. Deposits.............................................................18
Section 4. Proxies..............................................................18
ARTICLE VII - SHARES; DIVIDENDS........................................................18
Section 1. Certificates.........................................................18
Section 2. Transfers............................................................19
Section 3. Lost or Destroyed Certificates.......................................19
Section 4. Fractions of a Share.................................................19
Section 5. Dividends............................................................19
ARTICLE VIII - CORPORATE SEAL...........................................................20
ARTICLE IX - FISCAL YEAR..............................................................20
ARTICLE X - AMENDMENTS...............................................................20
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ARTICLE I - MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings.
All meetings of stockholders shall be held at the registered
office of the Corporation in the State of Delaware or at such other places
within or without the State of Delaware as may be specified in the notices of
such meetings.
Section 2. Annual Meeting.
An annual meeting of stockholders for the election of directors
and the transaction of such other business as may be properly brought before
such meeting shall be held (i) at 10:00 a.m. on the third Tuesday of May in each
and every year, if that day is a business day, or, if that day is not a business
day, on the next following day which is a business day or (ii) on such other
date and at such other time as the Board of Directors of the Corporation (the
"Board") may from time to time determine. Any annual meeting of stockholders may
be adjourned from time to time until the business to be transacted at such
meeting is completed.
Section 3. Special Meetings.
Special meetings of stockholders can be called only as provided
in the Certificate of Incorporation of the Corporation, as then in effect (the
"Certificate of Incorporation"). Each such meeting shall be called by giving
notice to that effect to the Secretary not more than sixty-five (65) days and
not less than fifteen (15) days before the date of such meeting. Such notice
shall state the place, date, hour and purpose or purposes of such meeting. Any
special meeting may be adjourned in accordance with Section 5(c) of this Article
I from time to time until the business to be transacted at such meeting is
completed.
Section 4. Record Date.
(a) In order to determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, the
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing such record date is adopted by the Board and which
record date shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting. If no record date is fixed by the Board, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be the close of business on the day next preceding the day
on which notice of such meeting is given or, if such notice is waived by all of
the stockholders, the close of business on the day next preceding the day on
which such meeting is held. A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board may fix a new
record date for such adjourned meeting.
(b) In order to determine the stockholders entitled to consent
to action in writing without a meeting, the Board may fix a record date, which
record date shall not precede the date upon which the resolution fixing such
record date is adopted by the Board and which record date 5 shall not be more
than ten (10) days after the date upon which the resolution fixing such record
date is adopted by the Board. If no record date is fixed by the Board, the
record date
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for determining stockholders entitled to consent to action in writing without a
meeting, when no prior action by the Board is required by the General
Corporation Law of the State of Delaware, as then in effect (the "Law"), shall
be the first date on which a signed written consent setting forth the action
taken or proposed to be taken is delivered to the Corporation at its registered
office in the State of Delaware, its principal place of business or an officer
or agent of the Corporation having custody of the books in which proceedings of
meeting of stockholders are recorded. Delivery made to the Corporation at its
registered office shall be made by personal delivery or by certified or
registered mail, return receipt requested, or shall otherwise be made in
accordance with applicable law. If no record date has been fixed by the Board
and prior action by the Board is required by the Law, the record date for
determining stockholders entitled to consent to action in writing without a
meeting shall be the close of business on the day on which the Board adopts the
resolution taking such prior action.
(c) In order to determine the stockholders (i) entitled to
receive payment of any dividend or other distribution or allotment of any rights
or to exercise any rights in respect of any change, conversion or exchange of
shares of capital stock of the Corporation or (ii) for the purpose of any other
lawful action, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing such record date is adopted
and which record date shall be not more than sixty (60) days prior to such
action. If no record date is fixed, the record date for determining stockholders
therefor shall be at the close of business on the day on which the Board adopts
the resolution relating to such action.
Section 5. Notice of Meetings; Waiver.
(a) Each notice of each meeting of stockholders shall state the
place, date and hour of such meeting and, unless it is an annual meeting of
stockholders, shall indicate that it is being sent by or at the direction of the
person or persons calling such meeting and state the purpose or purposes for
which such meeting is being called. If at any meeting of stockholders action is
proposed to be taken which would, if taken, give stockholders fulfilling the
requirements of Section 262 of the Law the right to receive payment for their
shares of capital stock of the Corporation, the notice of such meeting shall
include a statement of such proposed action and such right. Not less than ten
(10) nor more than sixty (60) days before the date of such meeting, the
Secretary shall give or cause to be given a copy of the notice of such meeting,
either by personal delivery or by mail, to each person entitled to notice of
such meeting. If mailed, such notice shall be deemed to have been given to a
stockholder when it is deposited in the United States mail, postage prepaid,
directed to the stockholder at his address as it appears on the stock records of
the Corporation or, if he or she shall have filed with the Secretary a written
request that notices to him be mailed to some other address, then directed to
him at such other address.
(b) A written waiver of notice of a meeting of stockholders
signed by a stockholder entitled to notice of such meeting, before or after such
meeting, shall be deemed to be equivalent to the giving of proper notice to such
stockholder of such meeting. Attendance of a stockholder at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
such stockholder attends such meeting for the express purpose of objecting, at
the commencement of such meeting, to the transaction of any business at such
meeting because such meeting was not lawfully called or convened. Neither the
business to be transacted at nor the
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purpose of any meeting of stockholders is required to be specified in any
written waiver of notice of such meeting.
(c) Any meeting may be adjourned from time to time, whether or
not there is a quorum, either (i) in the discretion of the chairman of the
meeting where necessary for the proper and orderly conduct of the meeting
(including, without limitation, where necessary to tabulate any vote, the
tabulation of which is necessary for the continued conduct of the meeting) or
(ii) by the affirmative vote of the holders of a majority of the voting power of
the shares of capital stock of the Corporation entitled to vote thereon present,
in person or by proxy, at the meeting. When a meeting of stockholders is
adjourned to another time or place, it shall not be necessary to give any notice
of the adjourned meeting if the time and place to which such meeting is
adjourned are announced at such meeting. Any business may be transacted at such
adjourned meeting which might have been transacted at such meeting. If the
adjournment is for more than thirty (30) days or if, after such adjournment, the
Board fixes a new record date for such adjourned meeting, a notice of such
adjourned meeting shall be given to each person entitled to notice of such
adjourned meeting. Unless expressly provided otherwise in these By-Laws, no
adjournment shall commence a new time period for any stockholder notice.
(d) Any previously scheduled meeting of stockholders may be
postponed or cancelled, and any special meeting of stockholders called by the
Board may be postponed or cancelled, by the Board at any time prior to the
commencement of such meeting.
Section 6. List of Stockholders.
The Secretary shall prepare, at least ten (10) days prior to each
meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order and showing the address of each
such stockholder and the number of shares held of record by each such
stockholder. Such list shall be open for inspection by any stockholder, for
purposes germane to such meeting, during ordinary business hours, for the ten
(10) days prior to such meeting, either at a place in the city where such
meeting is to be held, which place shall be specified in the notice of such
meeting, or, if not so specified, at the place where such meeting is to be held.
Such list shall also be produced and kept open at such meeting during the whole
time thereof and may be inspected by any stockholder who is present thereat. The
stock records of the Corporation shall be conclusive evidence as to who are the
stockholders entitled to examine such stock records, the list described in this
Section 6 or the books of the Corporation or to vote at any meeting of
stockholders.
Section 7. Quorum; Manner of Acting.
(a) Except as otherwise required by the Law or the Certificate
of Incorporation or as provided with respect to meetings consisting solely of
holders of shares of Preferred Stock in the resolution or resolutions providing
for the issuance of such shares, the presence, at the commencement of such
meeting, in person or by proxy of holders of a majority of the issued and
outstanding shares of capital stock of the Corporation entitled to vote at a
meeting of stockholders shall be required in order to constitute a quorum for
the transaction of business thereat, except that when specified business is to
be voted on by one or more classes or series of such capital stock voting as a
class, unless otherwise provided by the Law or the
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Certificate of Incorporation, such presence of holders of a majority of the
voting power of the issued and outstanding shares of such class or series shall
constitute a quorum for purposes of such business.
(b) If a quorum shall not be present at the commencement of any
meeting of stockholders, a majority of the stockholders present in person or by
proxy may adjourn such meeting to another time and place.
(c) Except as otherwise required by the Law or the Certificate
of Incorporation and as otherwise provided in these By-Laws with respect to the
election of directors and except as otherwise provided with respect to meetings
consisting solely of holders of shares of Preferred Stock in the resolution on
resolutions providing for the issuance of such shares, a matter submitted to a
vote at a meeting of stockholders shall have been approved only if a quorum was
present at the commencement of such meeting and the holders of a majority of the
issued and outstanding shares of the capital stock of the Corporation entitled
to vote on such matter shall have voted to approve such matter.
(d) Every stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by proxy.
Such authorization must be granted by a means expressly permitted by the Law. No
proxy shall be voted or acted upon after three (3) years from its date unless
such proxy provides that it may be voted or acted upon for a longer period. A
duly executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A stockholder may revoke any proxy which is not
irrevocable by attending the relevant meeting of stockholders and voting or
acting in person, by filing with the Secretary a written instrument revoking
such proxy or by filing with the Secretary another duly executed proxy bearing a
later date.
Section 8. Business Transacted.
(a) No business shall be transacted at any meeting of
stockholders unless it shall have been brought before such meeting in accordance
with this Section 8(a) of this Article I. Business may be brought (i) before a
special meeting of stockholders only by or at the direction of the Board or by
the person or persons calling such meeting as expressly permitted by the
Certificate of Incorporation or (ii) before an annual meeting of stockholders
only (A) by or at the direction of the Board or by any other person or persons
who could call a special meeting of stockholders as expressly permitted by the
Certificate of Incorporation or (B) by a stockholder who is entitled to vote
thereon at such meeting and who complies with the procedures set forth in this
Section 8(a) of this Article I. For business to be properly brought before an
annual meeting of stockholders by a stockholder as permitted by clause (ii)(B)
of the preceding sentence, such stockholder must have given timely notice of his
intention to do so in writing, together with the information required by this
Section 8(a), to the Secretary and such business must be a matter proper to be
brought before such meeting. To be timely, such notice must be delivered or
mailed to, and received at, the principal executive office of the Corporation
not less than one hundred five (105) days prior to the meeting; provided,
however, that if less than one hundred five (105) days' notice or prior public
disclosure of the date of such meeting is given to stockholders or made, such
notice must be so delivered or mailed, and received, not later than the close of
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business on the tenth (10th) day following the day on which notice or public
disclosure of the date of such meeting is given to stockholders or made (except
that this proviso shall not apply if such meeting is an annual meeting which
will be held on the date specified in clause (i) of Section 2 of Article I or
within thirty (30) days thereafter). Such notice must set forth as to each
matter such stockholder proposes to bring before such meeting (i) a brief
description (which includes all of the material aspects thereof) of the business
desired to be brought before such meeting and the reasons for conducting such
business at such meeting, (ii) the name and address, as they appear on the stock
records of the Corporation, of the stockholder desiring to propose such
business, (iii) the classes and number of shares of each class of capital stock
of the Corporation that are owned beneficially and of record by such
stockholder, his affiliates, all groups of which he or she is a member and all
persons with whom he or she is acting in concert (in each case, identifying
them) and (iv) any material direct or indirect interest of such stockholder,
affiliates, groups or persons in such business. The chairman of such meeting
shall determine whether any business to be brought before such meeting will be
properly so brought in accordance with this Section 8(a) of this Article I and,
if he or she should determine that such business will not be properly so
brought, he or she shall so declare at such meeting and such business shall not
be transacted at such meeting.
(b) No individual shall be eligible for election as a director
unless he or she is nominated in accordance with this Section 8(b) of this
Article I. Nominations of individuals for election as directors may be made at a
meeting of stockholders at which directors are to be elected only (i) by or at
the direction of the Board or by any other person or persons who could call a
special meeting of stockholders as expressly permitted by the Certificate of
Incorporation or (ii) by a stockholder who is entitled to vote for the election
of directors at such meeting and who complies with the procedures set forth in
this Section 8(b) of this Article I. For nominations to be properly made at a
meeting by a stockholder as permitted by clause (ii) of the preceding sentence,
such stockholder must have given timely notice of his intention to do so in
writing, together with the information required by this Section 8(b), to the
Secretary. To be timely, such notice must be delivered or mailed to, and
received at, the principal executive office of the Corporation not less than one
hundred five (105) days prior to such meeting; provided, however, that if less
than one hundred five (105) days' notice or prior public disclosure of the date
of such meeting is given to stockholders or made, such notice must be so
delivered or mailed, and received, not later than the close of business on the
tenth (10th) day following the day on which notice or public disclosure of the
date of such meeting is given to stockholders or made (except that this proviso
shall not apply if such meeting is an annual meeting which will be held on the
date specified in clause (i) of Section 2 of Article I or within thirty (30)
days thereafter). Such notice must set forth: (i) as to each individual whom
such stockholder proposes to nominate for election as a director, (A) the name,
date of birth, business address and residential address of such individual, (B)
the principal occupation or employment of such individual for at least the five
years preceding the date of such notice, (C) the classes and number of each
class of the capital stock of the Corporation that are owned beneficially and of
record by such individual, his affiliates, all persons with whom he or she is
acting in concert and all groups of which he or she is a member (in each case,
identifying them) and (D) all information relating to such individual that is
required to be disclosed in solicitations of proxies for election of directors
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (including each such
individual's written consent to serve as director if elected); and (ii) as to
the stockholder giving such notice, (A) the name and address of such
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stockholder, as they appear on the stock records of the Corporation, (B) the
classes and number of shares of each class of capital stock of the Corporation
that are owned beneficially and of record by such stockholder, his affiliates,
all persons acting in concert with him and all groups of which he or she is a
member (in each case, identifying them) and (C) any professional, commercial,
business or familial relationship of such stockholder, affiliates, persons or
groups (in each case, identifying them) to such nominees, his affiliates, any
person acting in concert with him or any group of which he or she is a member
(in each case, identifying them). The chairman of such meeting shall determine
whether any nomination to be made at such meeting will be properly so made in
accordance with this Section 8(b) of this Article I and, if he or she should
determine that such nomination will not be properly so made, he or she shall so
declare at such meeting and such nomination shall not be made at such meeting.
(c) For the purposes of this Section 8: "acting in concert" and
"group" shall have the same meanings as they have under Sections 13 and 14 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations thereunder; "affiliate" in respect of a person shall mean
another person who controls, is controlled by or is under common control with
such person; "beneficially owns" (and variations thereof) shall have the same
meaning as when used in Section 13(d) of the Exchange Act and Regulation 13D-G
thereunder; and "public announcement" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the
Exchange Act.
(d) Notwithstanding the foregoing provisions of this Section 8,
(i) a stockholder shall also be required to comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder with
respect to the matters described in this Section 8 and nothing contained herein
shall constitute a waiver by the Corporation or any stockholder of compliance
therewith and (ii) nothing in this Section 8 shall be deemed to affect any
rights of the holders of issued and outstanding shares of any series of
preferred stock of the Corporation to elect directors in accordance with the
resolution or resolutions providing for the issuance of such series.
(e) Nothing contained in this Section 8 shall apply to business
brought or other nominations made by the Principal Stockholder (as defined in
the Certificate of Incorporation).
Section 9. Order of Business; Voting.
(a) The Chairman of the Board or, in the absence of the
Chairman of the Board (including an absence because no Chairman of the Board
shall have been designated), the President, or, in the absence of both of them,
a Vice President, or, in the absence of all of them, a person designated by the
Board, or in the absence of all of them, a person designated by the holders of a
majority of the outstanding shares of capital stock of the Corporation present
in person or by proxy and entitled to vote at such meeting shall act as the
chairman of such meeting. The chairman of each meeting of stockholders shall
call such meeting to order, determine the order of business at such meeting and
otherwise preside over such meeting.
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(b) The Secretary shall act as secretary of each meeting of
stockholders and keep the minutes thereof, but, in the absence of the Secretary,
the chairman of such meeting shall appoint some other person to act as secretary
of such meeting.
(c) Unless required by the Law, requested by any stockholder
present in person or by proxy and entitled to vote at such meeting or directed
by the chairman of such meeting, neither the vote for the election of directors
nor upon any other business before any meeting of stockholders is required to be
conducted by written ballot. On a vote by written ballot, (i) each written
ballot cast by a stockholder voting in person shall state the name of such
stockholder, the number of shares of capital stock of the Corporation held of
record by him and the number of such shares voted by him and (ii) each ballot
cast by proxy shall bear the name of such proxy, the name of the stockholder for
whom he or she is voting, the number of shares of capital stock of the
Corporation held of record by such stockholder and the number of such shares
voted on behalf of such stockholder.
(d) Shares of capital stock of the Corporation held by the
Corporation or any of its majority-owned subsidiaries in treasury shall not be
shares entitled to vote at, or to be counted in determining the presence of a
quorum for, any meeting of stockholders or be counted in determining the total
number of outstanding shares of capital stock of the Corporation. This Section
9(c) shall not limit the right of the Corporation or any of its subsidiaries to
vote any shares of capital stock of the Corporation held by the Corporation or
such subsidiary in a fiduciary capacity.
(e) To the extent (but only to the extent) expressly provided
in the Certificate of Incorporation, action required or permitted to be taken at
a meeting of stockholders may be taken without a meeting, without any prior
notice and without a vote thereon, if stockholders having not less than the
minimum number of votes that would be necessary to take such action at a meeting
at which all stockholders entitled to vote thereon were present and voting,
consent in writing to such action and such writing or writings are filed with
the minutes of proceedings of the stockholders. Prompt written notice of the
taking of such action shall be given by the Secretary to all stockholders who
have not consented in writing to such action.
Section 10. Inspectors.
(a) The Board shall appoint or authorize an officer to appoint
one or more persons to act as inspectors at meetings of stockholders or any
adjournment thereof. Inspectors need not be stockholders and may be employees of
the Corporation. In case any person so appointed fails to appear or act, the
vacancy may be filled by appointment of another person by the Board in advance
of such meeting or at such meeting by the chairman of such meeting.
(b) Each inspector appointed to act at any meeting of
stockholders shall, before entering upon the discharge of his duties, take and
sign an oath to execute faithfully the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. Such inspectors
shall (i) determine the number of shares outstanding and the voting power of
each such share, the number of shares represented at such meeting, the existence
of a quorum and the validity and effect of proxies, (ii) receive votes or
ballots, (iii) hear and determine all challenges and questions arising in
connection with the right to vote, (iv) count and tabulate all
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votes or ballots, (v) determine the result and (vi) do all acts which may be
proper in connection with conducting a vote at such meeting, with fairness to
all stockholders. On the request of the chairman of such meeting or any
stockholder present in person or by proxy and entitled to vote at such meeting,
the inspectors shall make a report in writing of any challenge, question or
matter determined by them and execute a certificate of any fact found by them.
Any such report or certificate shall be prima facie evidence of the facts so
stated and of the vote so certified.
ARTICLE II - BOARD OF DIRECTORS
Section 1. Powers; Qualifications; Number; Election.
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board. Except as otherwise provided in
the Certificate of Incorporation, the Board may exercise all of the authority
and powers of the Corporation and do all of the lawful acts and things which are
not by the Law, the Certificate of Incorporation or these By-Laws directed or
required to be exercised or done by the stockholders. The directors shall act
only as a board and the individual directors shall have no power as such. Each
director shall be at least twenty-five (25) years of age. A director is not
required to be a resident of the State of Delaware or a stockholder. The Board
shall consist of that number of directors as shall be fixed in accordance with
the Certificate of Incorporation.
(b) At all elections of directors by stockholders entitled to
vote thereon, the individuals receiving a plurality of the votes cast shall be
deemed to have been elected as directors.
Section 2. Term of Office of a Director.
The term of office of each director shall commence and continue
as provided in the Certificate of Incorporation.
Section 3. Resignations; Filling of Vacancies.
(a) Any director may resign at any time by giving written
notice of his resignation to the Board or the Secretary. Such resignation shall
take effect at the time of receipt of such notice by the Board or the Secretary,
as the case may be, or at any later time specified therein and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
(b) Any vacancy on the Board can be filled as (but only as)
provided in the Certificate of Incorporation. A director elected to fill such a
vacancy shall hold office as provided in the Certificate of Incorporation.
Section 4. Meetings of the Board; Notice; Waiver.
(a) All regular meetings of the Board shall be held at such
places within or without the State of Delaware as may be fixed by the Board. All
special meetings of the Board shall be held at such places within or without the
State of Delaware as may be specified in the notices of such meetings.
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(b) Regular meetings of the Board for the transaction of such
business as may be properly brought before such meetings shall be held on such
dates and at such times as may be fixed by the Board. Notices of such regular
meetings are not required to be given.
(c) Special meetings of the Board may be called at any time by
the Chairman of the Board, the President or any director. Each such meeting
shall be called by giving notice to that effect to the Secretary at least
twenty-four (24) hours before such meeting. Such notice shall state the place,
date, hour and purpose or purposes of such meeting. Promptly after receipt of
such notice and, in any event, not less than twenty-four (24) hours before such
meeting, the Secretary shall give notice of such meeting to all directors. Such
notice shall state the place, date, hour and purpose or purposes of such meeting
and shall indicate that such notices are being sent at the request of the person
calling such meetings. Except as otherwise required by the Law, each notice of
each special meeting of the Board shall be deemed to have been duly given if
deposited in the mail, addressed to a director at his residence or usual place
of business, at least five (5) days before the date of such meeting or if
delivered personally or by telex, telephone, telegraph, telecopier or other
electronic means addressed to a director at his residence or usual place of
business at least twenty-four (24) hours before such meeting.
(d) A written waiver of notice of a meeting of the Board signed
by a director, before or after such meeting, shall be deemed to be equivalent to
the giving of proper notice to such director of such meeting. Attendance of a
director at a meeting of the Board shall constitute a waiver of notice of such
meeting, except when such director attends such meeting for the express purpose
of objecting, at the commencement of such meeting, to the transaction of any
business at such meeting because such meeting was not lawfully called or
convened. Neither the business to be transacted at nor the purpose of any
regular or special meeting of the Board is required to be specified in any
written waiver of notice of such meeting.
Section 5. Quorum; Adjournment.
The presence of a majority of the Whole Board (as defined in the
Certificate of Incorporation) at any meeting of the Board shall be required in
order to constitute a quorum for the transaction of business thereat. Any
meeting of the Board may be adjourned from time to time until the business to be
transacted at such meeting is completed. If a quorum shall not be present at any
such meeting, a majority of the directors present may adjourn such meeting to
another time and place. When a meeting of the Board is adjourned to another time
and place, it shall not be necessary to give any notice of the adjourned meeting
if the time and place to which such meeting is adjourned are announced at such
meeting. Any business may be transacted at such adjourned meeting which might
have been transacted at such meeting.
Section 6. Manner of Acting.
(a) The Board may designate a Chairman of the Board. The
Chairman of the Board shall preside at all meetings of stockholders and of the
Board. He shall perform such other duties as the Board may from time to time
assign to him. In the absence of the Chairman of the Board (including an absence
because no Chairman of the Board shall have been designated), a person
designated by a majority of the directors present at such meeting shall serve as
the chairman of such meeting. The chairman of each meeting of the Board shall
call
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such meeting to order, determine the order of business at such meeting and
otherwise preside over such meeting.
(b) The Secretary shall act as secretary of each meeting of the
Board and keep the minutes thereof, but, in the absence of the Secretary, the
chairman of such meeting shall appoint some other person to act as secretary of
such meeting.
(c) At each meeting of the Board each director shall be
entitled to one vote. Except as otherwise provided in the Certificate of
Incorporation or these By-Laws, a matter submitted to a vote at a meeting of the
Board shall have been approved only if a quorum was present at the time of the
vote thereon and a majority of the directors present at that time shall have
voted to approve such matter.
(d) Any action required or permitted to be taken at any meeting
of the Board may be taken without a meeting if all of the directors consent in
writing to such action and such writing or writings are filed with the minutes
of proceedings of the Board.
Section 7. Annual Meeting of Directors.
An annual meeting of the Board for the transaction of such
business as may be properly brought before such meeting shall be held promptly
following each annual meeting of stockholders.
Section 8. Participation in Meeting by Telephone.
One or more directors may participate in a meeting of the Board
by means of conference telephone or similar communications equipment by means of
which all persons participating in such meeting can hear each other at the same
time. Participation in a meeting of the Board by such means shall constitute
presence in person at such meeting.
Section 9. Compensation and Expenses of Directors.
Directors may be compensated for rendering services as such as
determined from time to time by the Board. Directors shall be reimbursed for
expenses incurred by them in connection with rendering services as such.
ARTICLE III - COMMITTEES OF THE BOARD
Section 1. Regular Committees.
The Board may, pursuant to a resolution or resolutions adopted by
an affirmative vote of a majority of the Whole Board, designate one or more
committees of the Board. The members of each such committee shall consist of
such directors (but only such directors) as may be designated by the Board,
pursuant to a resolution or resolutions adopted by an affirmative vote of a
majority of the Whole Board. The Board may, pursuant to a resolution or
resolutions adopted by an affirmative vote of a majority of the Whole Board,
designate one or more directors as alternate members of any committee who may
replace any absent or disqualified member of any committee at any meeting of
such committee. Any vacancy on any committee resulting
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from death, resignation or any other event or circumstance, which is not filled
by an alternate member, shall be filled by the Board, pursuant to a resolution
or resolutions adopted by an affirmative vote of a majority of the Whole Board.
Directors elected to fill such vacancies shall hold office for the balance of
the terms of the members whose vacancies are so filled. Each committee will
report its actions in the interim between meetings of the Board at the next
meeting of the Board or as otherwise directed by the Board.
Section 2. Regular Committee Powers.
Any committee of the Board, to the extent (but only to the
extent) provided in a resolution or resolutions adopted by the affirmative vote
of a majority of the Whole Board, (i) shall have and may exercise all of the
powers and authority of the Board and do all of the lawful acts and things which
may be done by the Board in the management of the business and affairs of the
Corporation and (ii) 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 the power or authority to: amend the Certificate of Incorporation; adopt an
agreement of merger or consolidation; recommend to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets; recommend to the stockholders a dissolution of the Corporation or a
revocation of a dissolution of the Corporation; except as otherwise provided in
the Certificate of Incorporation, call a meeting of stockholders; amend or
repeal these By-Laws or adopt new By-Laws; or approve or recommend to the
stockholders any business, action or matter required by the Law to be submitted
to stockholders for approval.
Section 3. Advisory Committees.
The Board or a committee of the Board may designate one or more
advisory committees to report to the Board or a committee of the Board. Each
such advisory committee shall consist of one or more individuals designated by
the Board or the committee of the Board which designated such advisory
committee. Such individuals are not required to be directors. The Board may
designate one or more individuals as alternate members of any advisory committee
who may replace any absent or disqualified member of any advisory committee at
any meeting of such committee. Any absence of any member of any advisory
committee or vacancy on any advisory committee resulting from death, resignation
or any other event or circumstance, which is not filled by an alternate member,
shall be filled only by the Board or the committee of the Board which designated
such advisory committee. Individuals elected to fill such vacancies shall hold
office for the balance of the terms of the members whose vacancies are so
filled. Each advisory committee will report its actions in the interim between
meetings of the Board or the committee of the Board which designated such
advisory committee at the next meeting of the Board or the committee of the
Board which designated such advisory committee or as otherwise directed by the
Board or the committee of the Board which designated such advisory committee. An
advisory committee shall have none of the powers or authority of the Board or
any committee of the Board.
Section 4. Procedures.
Unless otherwise expressly authorized by the Board in the
resolution or resolutions designating such committee or advisory committee, the
members of committees or
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advisory committees shall act only as a committee and the individual members
shall have no power as such. Any member of any committee or advisory committee
may be removed as such and any committee may be dissolved by the Board, as set
forth in a resolution or resolutions adopted by the Whole Board at any time,
except as may be provided otherwise in the resolution or resolutions designating
such committee or advisory committee. The presence, at any meeting thereof, of a
majority of the total number of members which a committee or advisory committee
would have if there were no vacancies thereon shall be required in order to
constitute a quorum for the transaction of business at such meeting. The term of
office of each member of any committee or advisory committee shall commence at
the time of his election and qualification and shall continue until his
successor shall have been duly elected or until the dissolution of the committee
or advisory committee or his earlier death, resignation or removal. Except as
otherwise provided in this Article III or in the resolution or resolutions
designating such committee or advisory committee and except for the reference to
presiding at meetings of stockholders in Section 6(a) of Article II hereof,
Sections 4, 5, 6, 7 and 8 of Article II hereof shall apply to committees and
advisory committees and members thereof as if references therein to the Board
and directors were references to such committees and members, respectively.
ARTICLE IV - OFFICERS
Section 1. Officers.
The Board shall elect a President. The Board may elect one or
more Vice Presidents (one or more of whom may be designated as an Executive Vice
President or a Senior Vice President), a Secretary, a Treasurer and also elect
or appoint, in accordance with Section 6 of this Article IV, such other officers
as it may at any time and from time to time determine. Any or all offices may be
held by the same person. Officers many be elected at any time or from time to
time.
Section 2. President.
The President shall be the chief executive of the Corporation and
shall, subject to the control of the Board, have general supervision over and
general charge for the business of the Corporation. The President shall see that
all orders of the Board are carried into effect. The President shall, generally,
perform such duties as may from time to time be assigned to him by these By-Laws
or by the Board and is authorized to enter into contracts and execute and
deliver instruments on behalf of the Corporation in the ordinary course of its
business without specific approval of the Board. The Board may elect a Chief
Executive Officer who may have the power, authority and duties of the President.
In such event, references herein to the President shall mean the Chief Executive
Officer and references to Vice President shall include the President except that
the President shall be senior to all Vice Presidents. The Chief Executive
Officer may also be elected President or another individual may be elected
President. Any such other individual shall, subject to the control of the Board,
perform all duties as may from time to time be assigned to him by the Board, the
Chief Executive Officer or these By-Laws.
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Section 3. Vice Presidents.
Each Vice President shall, subject to the control of the Board,
perform all duties as may from time to time be assigned to him by the Board, the
President or these By-Laws. In case of the absence of the President, any Vice
President designated by the Board shall perform the duties of the President with
all of the powers of, and subject to all of the restrictions upon, the
President.
Section 4. Treasurer.
The Treasurer shall, subject to the control of the Board, have
charge and custody of and be responsible for all of the funds and securities of
the Corporation, keep full and accurate accounts of assets, liabilities,
receipts, disbursements and other transactions of the Corporation in books
belonging to the Corporation, cause regular audits of such books to be made and
deposit all moneys and other valuable effects in the name of and to the credit
of the Corporation in such 12 16 banks or other depositories as may be
designated by the Board. The Treasurer shall, subject to the control of the
Board, disburse the funds of the Corporation as ordered by the Board or the
other officers of the Corporation in accordance with these By-Laws, taking
proper vouchers for such disbursements, and shall render to the President and to
the Board at its meetings or whenever he or she or it may require a statement of
all his transactions as treasurer and an account of the financial condition of
the Corporation. In general, the Treasurer shall, subject to the control of the
Board, perform all of the duties incident to the office of treasurer and such
other duties as may from time to time be assigned to him by the Board, the
President or these By-Laws.
Section 5. Secretary.
The Secretary shall, subject to the control of the Board, act as
secretary of, and keep the minutes of, the proceedings of the Board and the
stockholders in books belonging to the Corporation, give or cause to be given
notice of all meetings of stockholders and directors as required by these
By-Laws, be custodian of the seal of the Corporation, affix the seal, or cause
it to be affixed, to all certificates for shares of capital stock of the
Corporation and to all documents the execution of which on behalf of the
Corporation under its seal shall have been specifically or generally authorized
by the Board, have charge of the stock records of the Corporation and of the
other books, records and papers of the Corporation relating to its organization
as a corporation and see that the reports, statements and other documents
required by law relating to the maintenance of the existence, qualifications and
franchises of the Corporation as a corporation are properly kept or filed. The
Secretary shall, subject to the control of the Board, generally perform all of
the duties incident to the office of secretary and such other duties as may from
time to time be assigned to him by the Board, the President or these By-Laws.
Section 6. Additional Officers and Appointed Officers.
The Board may from time to time elect such other officers
(including, without limitation, assistant officers) as the Board may deem
proper, each of whom shall hold office for such period, have such authority and
perform such duties as the Board or the President pursuant to authority
delegated to him by the Board may from time to time determine. The President
may,
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pursuant to authority delegated to him from time to time by the Board, from time
to time, appoint one or more officers or assistant officers (other than Vice
Presidents, the Secretary or the Treasurers) as the President shall deem proper,
each of whom shall hold office for such period, have such authority and perform
such duties as the President or other officers pursuant to authority delegated
to them by the President may from time to time determine. The Board and the
President pursuant to authority delegated by the Board may from time to time
employ or engage such employees, agents, consultants, representatives and
advisors as the Board or the President shall deem proper, each of whom shall be
employed or engaged for such period, have such authority and perform such duties
as the Board or the President may from time to time determine.
Section 7. Removal.
Any officer, employee, agent, consultant, representative or
advisor of the Corporation may be removed at any time by the Board, by the
President pursuant to authority delegated to him by the Board, or by a committee
of the Board or a subordinate officer if such committee or subordinate officer
appointed or elected such removed person pursuant to authority delegated to it
or him by the Board or the President, except that an executive officer of the
Corporation may be removed or replaced, directly or indirectly (including,
without limitation, removal or replacement effected by reason of election and
qualification of a successor, demotion, relocation, failure to re-elect or
diminution in duties or compensation), pursuant to (but only pursuant to) a
resolution or resolutions adopted by the affirmative vote of a majority of the
Whole Board (excluding, if such officer is also a director, such director). For
this purpose, an executive officer means the President or a Vice President.
Section 8. Resignations.
Any officer may resign from his office at any time by giving
written notice of his resignation to the Board, the President or the Secretary.
The resignation of any officer shall take effect at the time of receipt of such
notice by the Board, the President or the Secretary, as the case may be, or at
any later time specified therein and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective. No
such resignation shall affect any rights which the Corporation may have under
any agreement with such officer.
Section 9. Giving of Bond by Officers.
All officers of the Corporation, if required to do so by the
Board, shall furnish bonds to the Corporation for the faithful performance of
their duties subject to such penalties and with such conditions and security as
the Board may from time to time require. All expenses of any such bond shall be
paid by the Corporation.
Section 10. Compensation of Officers.
Compensation of officers of the Corporation may be fixed from
time to time by the Board or, in the case of officers other than the President,
by the President pursuant to authority delegated to him by the Board. No officer
shall have any rights to any compensation by virtue of his or her election as
such.
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Section 11. Term of Office.
Subject to Section 7 of this Article IV, the term of office of
each officer shall commence at the time of his election and qualification and
shall continue until his successor shall have been duly elected and qualified or
his earlier death, resignation or removal.
Section 12. Voting Stock Held by Corporation.
Except as otherwise determined from time to time by the Board,
the President shall have full power and authority in the name and on behalf of
the Corporation to attend, act and vote at any meeting of stockholders, partners
or owners of any corporation, partnership or other entity in which the
Corporation may hold stock, a partnership interest or another ownership interest
and at any such meeting shall possess and may exercise any and all rights and
powers incident to the ownership of such stock or interest which, as the owner
thereof, the Corporation might have possessed and exercised. The Board may from
time to time confer like powers upon any other person or persons and the
President may delegate his powers hereunder to any other officer of the
Corporation.
ARTICLE V - INDEMNIFICATION
Section 1. Indemnification.
(a) Each person who is or was made a party or is threatened to
be made a party to, or is or was involved (including involvement as a witness)
in, any action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether by a third party or by or in the right of the
Corporation (a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
or, to the extent so provided pursuant to a resolution or resolutions adopted by
the affirmative vote of a majority of the Board, an employee or agent, of the
Corporation or a subsidiary of the Corporation or is or was serving at the
request of the Corporation as a director, officer, partner, member, employee,
agent or trustee of another corporation (other than a subsidiary of the
Corporation) or of a partnership, joint venture, trust or other enterprise,
including an employee benefit plan, whether the basis of such proceeding is
alleged action in an official capacity as an officer or director or in any other
capacity while so serving, shall be indemnified by the Corporation for and held
harmless by the Corporation from and against, to the fullest extent authorized
by the Law, as the same exists or may hereafter be amended (but, in the case of
any such amendment, only to the extent that such amendment permits the
Corporation to provide broader or greater rights to indemnification than the Law
prior to such amendment permitted the Corporation to provide), all expenses,
liabilities and losses (including attorneys' fees, judgments, fines, excise
taxes, penalties and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such person in connection therewith; provided, however,
that, except as provided herein with respect to proceedings seeking to enforce
rights to indemnification, the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board.
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Such right to indemnification shall continue as to a person who
has ceased to be such an officer, director, partner, member, agent or trustee
and shall inure to the benefit of his or her heirs, executors and
administrators. Such right to indemnification shall be a contract right and
shall include the right of such person to be paid the expenses (including costs
and attorneys' fees and disbursements) incurred in defending a proceeding in
advance of its final disposition to the fullest extent authorized by the Law, as
the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader or greater rights to indemnification than the Law prior to such
amendment permitted the Corporation to provide); provided, however, that, if the
Law requires, the payment of such expenses incurred by a director or officer of
the Corporation in his capacity as a director or officer of the Corporation (and
not in any other capacity in which service was or is rendered by such person
while a director or officer of the Corporation, including, without limitation,
service to an employee benefit plan) in advance of the final disposition of a
proceeding, shall be made only upon delivery to the Corporation of an
undertaking, by or on behalf of such director or officer, to repay all amounts
so advanced if it shall ultimately be determined that such director or officer
is not entitled to be indemnified under this Article or otherwise. Such right to
indemnification and to the payment of expenses may be granted to any other
employee or agent of the Corporation or its subsidiaries if, and to the extent,
authorized by the Board.
(b) If a claim under this Article is not paid in full by the
Corporation within thirty (30) days after a written demand therefor has been
received by the Corporation, the claimant may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall also be entitled to be paid
the expense of prosecuting such suit. It shall be a defense to any such suit
(other than a suit brought to enforce a claim for expenses incurred in defending
a proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including the Board, independent legal counsel to the Corporation
or the stockholders) to have made a determination prior to the commencement of
such suit that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Law nor an actual determination by the Corporation (including the Board,
independent legal counsel to the Corporation or the stockholders) that the
claimant has not met such applicable standard of conduct shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 2. Indemnification Not Exclusive.
The indemnification of or the payment of expenses for any person
under this Article, or the right of any person to indemnification or payment of
expenses under this Article, shall not limit or restrict in any way the power of
the Corporation to indemnify or pay expenses for such person in any other manner
permitted by law or be deemed exclusive of, or invalidate, any other right which
such person may have or acquire under any law, agreement, vote of stockholders
or disinterested directors, or otherwise.
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Section 3. Successors.
The right of any person to indemnification and payment of
expenses under this Article shall continue as to a person after such person
shall have ceased to be such an officer, director, partner, member, employee,
agent or trustee, shall inure to the benefit of the heirs, distributees,
executors, administrators and other legal representatives of such person, shall
survive and not be adversely affected by any modification or repeal of this
Article with respect to any claim or proceeding which arose or transaction,
matter, event or condition which occurred or existed before such modification or
repeal and shall be binding upon all successors of the Corporation.
Section 4. Insurance.
The Corporation may purchase and maintain insurance on behalf of
any person who is or was such an officer, director, partner, member, employee,
agent or trustee against any liability asserted against such person as such an
officer, director, partner, member, employee, agent or trustee or arising out of
such person's status as such an officer, director, partner, member, employee,
agent or trustee, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article or applicable law.
Section 5. Definition of Certain Terms.
(a) For purposes of this Article, references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, fiduciary, employee or agent
of the Corporation which imposes duties on, or involves services by, such
director, officer, fiduciary, employee or agent with respect to an employee
benefit plan, its participants or its beneficiaries.
(b) For the purposes of this Article and the Law, a person who
acted in good faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interest of the
Corporation."
ARTICLE VI - CONTRACTS; BANK ACCOUNTS; PROXIES
Section 1. Execution of Contracts.
Except as provided otherwise in these By-Laws, the Board may from
time to time authorize any officer, employee, agent or representative of the
Corporation, in the name and on behalf of the Corporation, to enter into any
contract or execute and deliver any instrument. Such authorization may be
general or confined to specific instances. Unless so authorized by the Board or
these By-Laws, no officer, employee, agent or representative shall have any
power or authority to bind the Corporation by any contract or engagement, to
pledge its credit or to render it pecuniarily liable for any purpose or to any
amount.
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Section 2. Checks; Drafts; Notes.
All checks, drafts and other orders for the payment of moneys out
of the funds of the Corporation and all notes or other evidences of indebtedness
of the Corporation shall be signed in the name and on behalf of the Corporation
in the manner authorized from time to time by the Board.
Section 3. Deposits.
All funds of the Corporation not otherwise employed shall be
deposited from time to time to the credit of the Corporation in the banks, trust
companies or other depositories selected from time to time by the Board or by an
officer, employee, agent or representative of the Corporation to whom such
authority may from time to time be delegated by the Board. For the purpose of
making such a deposit, any officer, employee, agent or representative to whom
authority to make such a deposit is delegated by the Board may endorse, assign
and deliver checks, drafts and other orders for the payment of moneys which are
payable to the order of the Corporation.
Section 4. Proxies.
Unless otherwise provided by the Board, the President or any Vice
President may at any time and from time to time act, or appoint a proxy or
proxies, an attorney or attorneys or agent or agents to act, in the name and on
behalf of the Corporation, in respect of any votes which the Corporation may be
entitled to cast as the holder of stock, ownership or equity interests or other
securities in any other corporation, company or other entity, at meetings of the
holders thereof, or to consent in writing to any action in lieu of such a
meeting or to waive notice of any such meeting, or to exercise or waive any
right appurtenant to such stock, interest or other securities and may instruct
the person or persons so appointed as to the manner of so doing, under its
corporate seal or otherwise, as he or she may deem necessary or appropriate for
the conduct of the business and affairs of the Corporation.
ARTICLE VII - SHARES; DIVIDENDS
Section 1. Certificates.
Every holder of record of a share or shares of capital stock of
the Corporation then outstanding shall be entitled to a duly signed certificate
in proper form certifying that he or she is the record holder of such share or
shares. Certificates for shares of capital stock and other securities of the
Corporation shall be issued in such forms as the Board may prescribe. Such
certificates shall be signed by the Chairman of the Board, the President or a
Vice President and by the Secretary or the Treasurer. The seal of the
Corporation or a facsimile thereof shall be affixed on such certificates, and
such certificates shall be countersigned and registered in such manner, if any,
as the Board may prescribe. The signatures of the officers upon such
certificates may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon any certificate
shall have ceased to be such an officer, transfer agent or registrar before such
certificate is issued, such certificate may be issued with the
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same effect as if he or she were such officer, transfer agent or registrar on
the date of issuance of such certificate.
Section 2. Transfers.
Transfers of shares of capital stock of the Corporation shall be
made on the records of the Corporation only upon authorization by the record
holder of such shares, in person or by his duly authorized attorney or legal
representative, upon surrender and cancellation of certificates therefor duly
endorsed or accompanied by duly executed stock powers (with such proof of
authenticity of signature as the Corporation or its agent may require) for a
like number of shares, upon payment of all taxes thereon and upon compliance
with any restrictions on transfer thereof. For so long as the Stockholders
Agreement is in effect, any purported transfer shall be subject to the
limitations set forth in Section 2.3 of the Stockholders Agreement. The person
in whose name shares of capital stock of the Corporation stand on the records of
the Corporation shall be deemed the owner of such shares for all purposes as
regards the Corporation. The Board may make such additional rules and
regulations and take such action as it may deem expedient, not inconsistent with
the Certificate of Incorporation and these By-Laws, concerning the issue,
transfer and registration of certificates or the issue of certificates in lieu
of certificates claimed to have been lost, destroyed, stolen or mutilated.
Section 3. Lost or Destroyed Certificates.
The Corporation may issue a new certificate for shares of capital
stock of the Corporation in order to replace any certificate theretofore issued
by it alleged to have been lost, stolen or destroyed, and the Corporation may
require the holder of the lost, stolen or destroyed certificate, or his legal
representative, to give to the Corporation a bond or other security to indemnify
it against all losses, liabilities and expenses (including attorney's fees and
expenses) incurred in connection with investigating, defending and settling any
claim that may be made against it on account of the alleged loss, theft or
destruction of such certificate or the issuance of such new certificate.
Section 4. Fractions of a Share.
The Corporation shall have the authority to issue (but shall not
be obligated, under these By-Laws, to issue) fractions of a share of any class
or series of capital stock of the Corporation. In lieu of issuing a fraction of
a share of any class or series of capital stock of the Corporation, the
Corporation may (i) make such payments as may be determined using such equitable
method as the officer of the Corporation may select and/or (ii) issue that
number of whole shares of such class or series of capital stock of the
Corporation as may be determined using such equitable method for rounding
fractions to integers as the officers of the Corporation may select, as the
Board may determine or the Certificate of Incorporation may require.
Section 5. Dividends.
Subject to the provisions of the Certificate of Incorporation and
to the extent permitted by the Law, the Board may declare dividends on shares of
any class or series of capital stock of the Corporation at such times and in
such amounts as, in its opinion, the conditions of the business of the
Corporation render advisable. Before payment of any dividend or making
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any distribution of profits, the Board may set aside out of the surplus or net
profits of the Corporation such sum or sums as the Board may from time to time,
in its absolute discretion, deem proper as a reserve fund to meet contingencies
or for equalizing dividends, for repairing or maintaining any property of the
Corporation or for such other purposes as the Board may from time to time deem
to be in the best interests of the Corporation.
ARTICLE VIII - CORPORATE SEAL
The Board may adopt a corporate seal of the Corporation which
shall be in such form as the Board may from time to time determine. When
authorized by these By-Laws or by the Board, a facsimile of the corporate seal
may be affixed in lieu of the corporate seal.
ARTICLE IX - FISCAL YEAR
The fiscal year of the Corporation shall be fixed from time to
time by the Board.
ARTICLE X - AMENDMENTS
These By-Laws, in whole or in part, may be amended or repealed
and new By-Laws, in whole or in part, may be adopted as (but only as) provided
in the Certificate of Incorporation.
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