AMENDED AND RESTATED BY-LAWS
OF TRANSTECH INDUSTRIES, INC.
As adopted pursuant to a Unanimous Written Consent
of Directors on October 27, 2009
ARTICLE I
OFFICES
Section 1. The principal office shall be in the City of Wilmington,
County of New Castle, State of Delaware.
Section 2. The corporation may also have offices at such other
places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. All meeting of the stockholders for the election of
directors shall be held in the City of Elizabeth, State of New Jersey, at
such place as may be fixed from time to time by the Board of Directors.
Meetings of stockholders for any other purpose may be held at such time
and place, within or without the State of Delaware, as shall be stated in
the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on the
third Monday of February, if not a legal holiday, and if a legal holiday,
then the next secular day following at 10:30 AM, or on such date and at
such time as the Board or the Executive Committee shall determine, at
which the stockholders shall elect by a plurality vote a Board of
Directors and transact such other business as may properly be brought
before the meeting.
Section 3. Written notice of the annual meeting shall be given to
each stockholder entitled to vote thereat at least ten days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten days before every
election of directors, a complete list of the stockholders entitled to
vote at said election, arranged in alphabetical order, showing the address
of and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, during
ordinary business hours, for a period of at least ten days prior to the
election, either at a place within the city, town or village where the
election is to be held and which place shall be specified in the notice of
the meeting, or, if not specified, at the place where said meeting is to
be held, and the list shall be produced and kept at the time and place of
election during the whole time thereof, and subject to the inspection of
any stockholder who may be present.
Section 5. Special meetings of the stockholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the certificate of
incorporation, may be called by the president and shall be called by the
president or secretary at the request in writing of a majority of the
Board of Directors, or at the request in writing of stockholders owning a
majority in the amount of the entire capital stock of the corporation
issued and outstanding and entitled to vote. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting of stockholders,
stating the time, place and object thereof, shall be given to each
stockholder entitled to vote thereat, at least five days before the date
fixed for the meeting.
Section 7. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 8. The holders of fifty per cent of the stock issued and
outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders
for the transaction of business except as otherwise provided by statute or
by the certificate of incorporation. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be
present or represented. At such adjourned meeting at which a quorum shall
be presented or represented any business may be transacted which might
have been transacted at the meeting as originally notified.
Section 9. When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such
meeting, unless the question is one upon which by express provision of the
statutes or of the certificate of incorporation, a different vote is
required in which case such express provision shall govern and control the
decision of such question.
Section 10. Each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share
of the capital stock having voting power held by such stockholder, but no
proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period, and, except where the transfer books of the
corporation have been closed or a date has been fixed as a record date for
the determination of its stockholders entitled to vote, no share of stock
shall be voted on at any election for directors which has been transferred
on the books of the corporation within twenty days next preceding such
election of directors.
Section 11. Whenever the vote of stockholders at a meeting thereof is
required or permitted to be taken in connection with any corporate action
by any provisions of the statutes or of the certificate of incorporation,
the meeting and vote of stockholders may be dispensed with, if all the
stockholders who would have been entitled to vote upon the action if such
meeting were held, shall consent in writing to such corporate action being
taken.
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the whole
Board shall be not less than two nor more than ten. The first Board shall
consist of three directors. Thereafter, within the limits above
specified, the number of directors shall be determined by resolution of
the Board of Directors or by the stockholders at the annual meeting. The
directors shall be elected at the annual meeting of the stockholders,
except as provided in Section 2 of this Article, and each director elected
shall hold office until his successor is elected and qualified. Directors
need not be stockholders.
Section 2. Vacancies and newly created directorships resulting from
any increase in the authorized number of directors may be filled by
majority of the directors then in office, though less than a quorum, and
the directors so chosen shall hold office until the next annual election
and until their successors are duly elected and shall qualify, unless
sooner displaced.
Section 3. The business of the corporation shall be managed by its
Board of Directors which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the
certificate of incorporation or by these by- laws directed or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 5. The first meeting of each newly elected Board of Directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute
the meeting, provided a quorum shall be present. In the event of the
failure of the stockholders to fix the time or place of such first meeting
of the newly elected Board of Directors, or in the event such meeting is
not held at the time and place so fixed by the stockholders, the meeting
may be held at such time and place as shall be specified in a notice given
as hereinafter provided for special meetings of the Board of Directors, or
as shall be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time
be determined by the Board.
Section 7. Special meetings of the Board may be called by the
president on one day's notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors.
Section 8. At all meetings of the Board a majority of the directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a
quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the certificate of
incorporation. If a quorum shall not be present at any meeting of the
Board of Directors the directors present thereat may adjourn the meeting
from time to time, without notice other than announcement at the meeting,
until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if prior to such action a written consent
thereto is signed by all members of the Board or of such committee as the
case may be, and such written consent is filed with the minutes of
proceedings of the Board or committee.
COMMITTEES OF DIRECTORS
Section 10. The Board of Directors may, by resolution passed by a
majority of the whole Board, designate one or more committees, each
committee to consist of two or more of the directors of the corporation,
which, to the extent provided in the resolution, shall have and may
exercise the powers of the Board of Directors 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, in
the absence or disqualification of any member of such committee or
committees, 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 member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member. Such
committee or committees shall have such name or names as may be determined
from time to time by resolution adopted by the Board of Directors.
Section 11. Each committee shall keep regular minutes of its meetings
and report the same to the Board of Directors when required.
COMPENSATION OF DIRECTORS
Section 12. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors or a
stated salary as director. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
CHAIRMAN OF THE BOARD
Section 13. The Board of Directors at its first meeting after each
annual meeting of the Stockholders shall choose, from among themselves, a
Chairman of the Board who shall preside over all meetings of the Board of
Directors. In the event that this office shall become vacant during the
term of the chairman or he shall not be present at any meeting of the
Board of Directors, then in such case the President of this corporation
shall act as chairman of the Board until the election of a new chairman by
the Board of Directors after the next annual meeting.
Section 14. The chairman of the Board shall have the same and
identical powers as the President of this corporation excepting that he
will not be the chief executive officer of this corporation and will not
participate in the day to day management of this corporation.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at
their addresses appearing on the books of the corporation. Notice by mail
shall be deemed to be given at the time when the same shall be mailed.
Notice to directors may also be given by telegram.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
Board of Directors and shall be a president, a vice- president, a
secretary and a treasurer. The Board of Directors may also choose
additional vice-presidents, and one or more assistant secretaries and
assistant treasurers. Two or more offices may be held by the same person,
except that where the offices of president and secretary are held by the
same person, such person shall not hold any other office.
Section 2. The Board of Directors at its first meeting after each
annual meeting of stockholders shall choose a president, one or more vice-
presidents, a secretary and a treasurer.
Section 3. The Board of Directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the Board.
Section 4. The salaries of all officers and agents of the corporation
shall be fixed by the Board of Directors.
Section 5. The officers of the corporation shall hold office until
their successors are chosen and qualify. Any officer elected or appointed
by the Board of Directors may be removed at any time by the affirmative
vote of a majority of the Board of Directors. Any vacancy occurring in any
office of the corporation shall be filled by the Board of Directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation; shall preside at all meetings of the Stockholders; shall have
general and active management of the business of the corporation and shall
see that all orders and resolutions of the Board of Directors are carried
into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required
or permitted by law to be otherwise signed and executed and except where
the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the corporation.
THE VICE PRESIDENTS
Section 8. The vice-president, or if there shall be more than one,
the vice-presidents in the order determined by the Board of Directors,
shall, in the absence or disability of the president, perform the duties
and exercise the powers of the president and shall perform such other
duties and have such other powers as the Board of Directors may from time
to time prescribe.
THE SECRETARY AND ASSISTANT BECRETARIES
Section 9. The secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the corporation and of the Board of
Directors in a book to be kept for that purpose and shall perform like
duties for the standing committees when required. He shall give, or cause
to be given, notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as
may be prescribed by the Board of Directors or president, under whose
supervision he shall be. He shall have custody of the corporate seal of
the corporation and he, or an assistant secretary, shall have authority to
affix the same to any instrument requiring it and when so affixed, it may
be attested by his signature or by the signature of such assistant
secretary. The Board of Directors may give general authority to any other
officer to affix the seal of the corporation and to attest the affixing by
his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the Board of
Directors, shall, in the absence or disability of the secretary, perform
the duties and exercise the powers of the secretary and shall perform such
other duties and have such other powers as the Board of Directors may from
time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the corporation and shall deposit
all moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of
Directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render the president and the Board of Directors,
at its regular meetings, or when the Board of Directors so requires, an
account of all his transactions as treasurer and of the financial
condition of the corporation.
Section 13. If required by the Board of Directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control
belonging to the corporation.
Section 14. The assistant treasurer, or if there shall be more than
one, the assistant treasurers in the order determined by the Board of
Directors, shall, in the absence or disability of the treasurer, perform
the duties and exercise the powers of the treasurer and shall perform such
other duties and have such other powers as the Board of Directors may from
time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by,
the chairman or vice-chairman of the Board of Directors, the president or
a vice-president and the treasurer or an assistant treasurer, or the
secretary or an assistant secretary of the corporation, certifying the
number of shares owned by him in the corporation.
Section 2. Where a certificate is signed (1) by a transfer agent or
an assistant transfer agent or (2) by a transfer clerk acting on behalf of
the corporation and a registrar, the signature of any such chairman or
vice-chairman of the Board of Directors, president, vice-president,
treasurer, assistant treasurer, secretary or assistant secretary may be
facsimile. In case any office or officers who have signed, or whose
facsimile signature or signatures have been used on, any such certificate
or certificates shall cease to be such officer or officers of the
corporation, whether because of death, resignation or otherwise, before
such certificate or certificates have been delivered by the corporation,
such certificate or certificates may nevertheless be adopted by the
corporation and be issued and delivered as though the person or persons
who signed such certificate or certificates or whose facsimile signature
or signatures have been used thereon had not ceased to be such officer or
officers of the corporation.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate
or certificates, or his legal representative, to advertise the same in
such manner as it shall require and/or to give the corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the corporation with respect to the certificate alleged to have
been lost or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer, it
shall be the duty of the corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the
transaction upon its books.
CLOSING OF TRANSFER BOOKS
Section 5. The Board of Directors may close the stock transfer books
of the corporation for a period not exceeding fifty days preceding the
date of any meeting of stockholders or the date for payment of any
dividend or the date for the allotment of rights or the date when any
change or conversion or exchange of capital stock shall go into effect or
for a period of not exceeding fifty days in connection with obtaining the
consent of stockholders for any purpose. In lieu of closing the stock
transfer books as aforesaid, the Board of Directors may fix in advance a
date, not exceeding fifty days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date for
the allotment of rights, or the date when any change or conversion or
exchange of capital stock shall go into effect, or a date in connection
with obtaining such consent, as a record date for the determination of the
stockholders entitled to notice of, and to vote at, any such meeting, and
any adjournment thereof, or entitled to receive payment of any such
dividend, or to any such allotment of rights, or to exercise the rights in
respect of any such change, conversion or exchange of capital stock, or to
give such consent, and in such case such stockholders and only such
stockholders as shall be stockholders of record on the date so fixed shall
be entitled to such notice of, and to vote at, such meeting and any
adjournment thereof, or to receive payment of such dividend, or to receive
such allotment of rights, or to exercise such rights, or to give such
consent, as the case may be notwithstanding any transfer of any stock on
the books of the corporation after any such record date fixed as
aforesaid.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold liable for
calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim
to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof, except as
otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISION
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the certificate of incorporation, if any, may
be declared by the Board of Directors at any regular or special meeting,
pursuant to law. Dividends may be paid in cash, in property, or in shares
of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds of the corporation available for dividends such sum or sums
as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think
conducive to the interest of the corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The Board of Directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by
vote of the stockholders, a full and clear statement of the business and
condition of the corporation.
CHECKS
Section 4. All checks or demands for money and notes of the
corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time
designate.
FISCAL YEAR
Section 5. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
SEAL
Section 6. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate
Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
Section 1. These by-laws may be altered or repealed at any regular
meeting of the stockholders or of the Board of Directors or at any special
meeting of the stockholders or of the Board of Directors if notice of such
alteration or repeal be contained in the notice of such special meeting.
No change of the time or place of the meeting for the election of
directors shall be made within sixty days before the day on which such
meeting is to be held, and in case of any change of such time or place,
notice thereof shall be given to each stockholder in person or by letter
mailed to his last known post-office address at least twenty days before
the meeting is held.
ARTICLE IX
INDEMNIFICATION
Section 1. Indemnification generally. The Company shall, to the
fullest extent permitted by the General Corporation Law of the State of
Delaware (the "GCL"), as amended from time to time, indemnify persons who
now serve or who may hereafter serve as directors or executive officers of
the Company.
Section 2. Good faith. For purposes of any determination under this
Article, a person shall be deemed to have acted in good faith and in a
manner he or she reasonably believed to be in, or not opposed to the best
interests of the Company, or, with respect to any criminal action or
proceeding, to have had no reasonable cause to believe his conduct was
unlawful, if his or her action is based (a) on the records of or books of
account of the Company or Another Enterprise (as hereinafter defined); (b)
on information supplied to him or her by the officers of the Company or
Another Enterprise in the course of their duties; (c) on the advice of
legal counsel for the Company or Another Enterprise; or (d) on information
or records given or reports made to the Company or Another Enterprise by
an independent certified public accountant, an appraiser or another expert
selected with reasonable care by the Company.
As used herein, the capitalized term "Another Enterprise" shall mean
any other corporation or any partnership, joint venture, trust or other
enterprise of which such person is or was serving, at the request of the
Company, as a director, officer, employee or agent.
The provisions of this Section 2 shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be deemed
to have met the applicable standard of conduct.
Section 3. Court-ordered indemnification. Notwithstanding any
determination on the part of the Company or its agents that
indemnification of any director or officer is not proper, and
notwithstanding the absence of any determination, any director or officer
may apply to any court of competent jurisdiction in the State of Delaware
for indemnification to the extent otherwise permissible under this
Article. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director or
officer is proper in the circumstances because he or she has met the
applicable standards of conduct set forth in this Article or the GCL, as
the case may be. Notice of any application for indemnification pursuant to
this Section shall be given to the Company promptly upon the filing of
such application.
Section 4. Non-exclusivity. The indemnification and advancement of
expenses provided by or granted hereunder shall not be deemed to be
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement,
contract, vote of stockholders, vote of disinterested directors, or
pursuant to the direction of any court of competent jurisdiction or
otherwise, both as to action in his or her official capacity and as to
action in another capacity while holding such office, it being the policy
of the Company that, subject to the provisions of Section 1 above,
indemnification of any director or officer of the Company or Another
Enterprise shall be made to the fullest extent permitted by law.
The provisions of this Article shall not be deemed to preclude the
indemnification of any director or officer of the Company or Another
Enterprise who is not specified in this Article but whom the Company has
the power or obligation to indemnify under the provisions of the GCL or
otherwise.
Section 5. Insurance. The Company may purchase and maintain insurance
on behalf of any person who is or was a director or officer of the Company
or Another Enterprise against any liability asserted against him or her
and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Company would have the power or the
obligation to indemnify him or her against such liability under the
provisions of this Article.
Section 6. Meaning of Company. For purposes of this Article,
references to the Company include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent), absorbed in a consolidation or merger which, if its separate
existence had continued, would have power and authority to indemnify its
director and officers, so that any person who is now, or may hereafter be
a director or officer of such constituent corporation shall stand in the
same position under the provisions of this Article with respect to the
resulting or surviving corporation as he or she would have with respect to
such constituent corporation if its separate existence had continued.
Section 7. Survival. The indemnification and advancement
of expenses provided by or granted pursuant to this Article shall, unless
otherwise provided when authorized or ratified, continue as to a person
who shall have ceased to be a director or officer and shall inure to the
benefit of the heirs, executors and administrators of such person.