Exhibit(3)(ii)
BY-LAWS
OF
GRAHAM CORPORATION(1)
(a Delaware Corporation)
ARTICLE 1
DEFINITIONS
As used in these By-Laws, unless the
context otherwise requires, the term:
1.1 "Board" means the board of
directors of the
Corporation.
1.2 "By-laws" means these by-laws of the
Corporation, as
amended from time to time.
1.3 "Certificate of Incorporation" means
the original
certificate of incorporation of the Corporation filed
on March 7, 1983 to form the Corporation, as
amended, supplemented or restated by certificates
of amendment, merger or consolidation or other
certificates or instruments filed or issued under
any statute from time to time after the aforesaid
date of filing of such original certificate.
1.4 "Corporation" means GRAHAM CORPORATION.
1.5 "Directors" means the directors of the
Corporation.
1.6 "Principal Office of the Corporation"
means the
principal office of the Corporation located at
20 Florence Avenue, Batavia, New York 14020.
1.7 "Plurality Vote" means the greater number
of votes cast
for one nominee for an office than the votes cast
for any other nominee for the same office.
1.8 "Shareholders" means the shareholders
of the
Corporation.
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(1) As amended on February 22, 1996, May 28, 1998,
October 31, 2002 and July 22, 2003
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ARTICLE 2
OFFICES
2.1 Principal Office. In addition to the
principal office, the Corporation may have offices
and places of business at such other places,
within or without the State of Delaware, as the
Board may from time to time determine.
ARTICLE 3
SHAREHOLDERS
3.1 Place of Meetings. Every meeting of the
shareholders shall be held at the principal office
of the Corporation or at such other place within or
without the State of Delaware as may be fixed from
time to time, by the Board, which place shall be
specified in the notice or waiver of notice thereof.
3.2 Annual Meeting for Election of Directors.
The annual meeting of shareholders for the election of
directors and the transaction of other business
shall be held on the first Wednesday in May of
each year at 12 o'clock noon (or at such other
hour as may be designated in the notice of meeting),
or, if the foregoing date falls on a legal
holiday, on the first business day thereafter
which is not a Saturday, Sunday or legal holiday,
unless a different date and time be fixed, from time
to time, by the Board.
3.3 Special Meetings. A special meeting of
shareholders unless otherwise prescribed by statute,
may be called at any time by the Chairman of the
Board or the President or in the absence or disability
of the Chairman of the Board and the President a meeting
of shareholders may be called by the Secretary, and
shall be called by the Secretary on the written
request of at least seventy-five percent (75%)
of the Directors, which written request shall
state the purpose or purposes of such meeting. At
a special meeting of shareholders, no business
shall be transacted and no corporate action shall be taken
other than that stated in the notice of meeting.
3.4 Fixing Record Date. For the purpose of
determining the shareholders entitled to notice of
or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or
dissent from any proposal without a meeting, or
for the purpose of determining shareholders entitled
to receive payment of any dividend or the allotment
of any rights, or entitled to exercise any rights
in respect of any change, conversion or exchange of
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stock, or for the purpose of any other lawful action,
the Board may fix, in advance, a date as the record
date for any such determination of shareholders. Such
date shall not be more than sixty (60) nor less than
ten (10) days before the date of such meeting nor more
than sixty (60) days prior to any other
action. If no record date is fixed: (i) the record
date for the determination of shareholders entitled
to notice of or to vote at a meeting of
shareholders shall be at the close of business on
the day next preceding the day on which notice is
given, or, if notice is waived, at the close of
business on the day next preceding the day on
which the meeting is held; (ii) the record date for
determining stockholders entitled to express consent
to corporate action in writing without a meeting,
when no prior action by the board of directors is
necessary, shall be the day on which the first
written consent is expressed; and (iii) the record
date for determining shareholders for any purpose,
other than those specified in clauses (i) and (ii) hereof,
shall be at the close of business on the day on
which the resolution of the Board relating thereto
is adopted. When a determination has been made of shareholders
entitled to notice of or to vote at a
meeting of shareholders as herein provided, such
determination shall apply to any adjournment of such
meeting, unless the Board fixes a new record date for
the adjourned meeting.
3.5 Notice of Meetings of Shareholders.
Whenever under any provision of law or the
Certificate of Incorporation or these By-Laws,
shareholders are required or permitted to take
any action at a meeting, the notice of that meeting
shall state the place, date and hour of the meeting
and unless it is the annual meeting, indicate that
it is being issued by or at the direction of the
person or persons calling the meeting. Notice of a
special meeting shall also state the purpose or
purposes for which the meeting is called. Notice
of any annual or special meeting of shareholders
shall be given, personally or by mail, not less than
ten (10) nor more than sixty (60) days before the
date of such meeting to each shareholder entitled
to vote thereat. If mailed, such notices shall be
deemed to be given when deposited in the
United States Mail, with postage thereon prepaid,
directed to the shareholder at his address as it
appears on the record of shareholders, or, if he
shall have filed with the Secretary of the
Corporation a written request that notice to him be
mailed to some other address, then directed to him at
such other address. An affidavit of the Secretary
or of the transfer agent of the Corporation that
the notice required by this section has been given
shall, in the absence of fraud, be prima facie evidence
of the facts therein stated. When a meeting is adjourned to
another time or place, it shall not be necessary to give
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any notice of the adjourned meeting if the time and place
to which the meeting is adjourned is announced at the meeting
at which the adjournment is taken, and at the
adjourned meeting any business may be transacted
that might have been transacted on the original date
of the meeting. However, if the adjournment is for
more than thirty (30) days or if, after the
adjournment, the Board fixes a new record date
for the adjourned meeting, a notice of the
adjourned meeting shall be given to each shareholder
of record who is entitled to vote at the meeting.
3.6 Waiver of Notice. Notice of meeting need
not be given to any shareholder who signs a waiver
of notice, whether before or after the meeting.
The attendance of any shareholder at a meeting, in
person or by proxy, shall constitute a waiver of
notice by him, except when the person attends the
meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of
any business because the meeting is not lawfully
called or convened.
3.7 List of Shareholders at Meetings. The
officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten
days before every meeting of stockholders, a
complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder
and the number of shares registered in the name of
each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose
germane to the meeting, during ordinary business
hours, for a period of at least ten days prior to
the meeting, either at a place within the city where
the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is
to be held. The list shall also be produced and
kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any
stockholder who is present.
3.8 Quorum of Shareholders. Except as
otherwise provided in these By-Laws or in the
Certificate of Incorporation, the holders of
record of a majority of the shares entitled to vote
thereat shall constitute a quorum at a meeting of
shareholders for the transaction of any business,
provided that when a specified item of business is
required to be voted on by a class or series,
voting as a class, the holders of a majority of the
shares of such class or series shall constitute a
quorum for the transaction of such specified item of
business. When a quorum is once present to
organize a meeting, it is not broken by the
subsequent withdrawal of any shareholder. The
shareholders present may adjourn the meeting despite
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the absence of a quorum.
3.9 Organization. At every meeting of the
shareholders, the Chairman of the Board, or an
individual appointed by him, who may be, but does
not have to be, an officer of the Corporation, shall
act as Chairman of the meeting. The Secretary of
the Corporation, or in his absence one of the
Assistant Secretaries of the Corporation, shall act
as Secretary of the meeting.
3.10 Order of Business. The Chairman of the
meeting shall conduct all meetings of the
shareholders in accordance with the best interests
of the Corporation. The order of business at all
such meetings shall be as determined by the
Chairman of the meeting. The Chairman of the meeting
shall have the authority and discretion to establish
reasonable procedural rules for the conduct of the
meeting, including regulation of the manner of
voting and the conduct of discussion as he or she
shall deem appropriate. The Chairman of the
meeting shall also have the authority to adjourn the
meeting from time to time and place to place as he
or she may deem necessary and in the best interests of the
Corporation.
3.11 Inspectors of Election. The Board, in
advance of any shareholders' meeting, may appoint
one or more inspectors to act at the meeting or any
adjournment thereof. If inspectors are not so
appointed, the person presiding at a shareholders'
meeting may, and on the request of any
shareholder entitled to vote thereat shall, appoint
inspectors. If appointed on the request of one or
more shareholders, the holders of a majority of shares
present and entitled to vote thereat shall determine
the number of inspectors to be appointed. In case
any person appointed fails to appear or act, the
vacancy may be filled by appointment made by the
Board in advance of the meeting or at the meeting by
the person presiding thereat. Each inspector, before
entering upon the discharge of his duties shall
take and sign an oath faithfully to execute the
duties of inspector at such meeting with strict
impartiality and according to the best of his
ability. The inspectors shall determine the number
of shares outstanding, the number of shares
represented at the meeting, the existence of a
quorum, the validity and effect of proxies, and
shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in
connection with the right to vote, count and
tabulate all votes, ballots or consents,
determine the result, and do such acts as are proper
to conduct the election or vote with fairness to
all shareholders. On request of the person
presiding at the meeting or any shareholder entitled
to vote thereat, the inspectors shall make a report
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in writing of any challenge, question or matter
determined by them and execute a certificate of any
fact found by them. Any report or certificate made
by them shall be prima facie evidence of the facts
stated and of the vote as certified by them.
3.12 Voting; Proxies. Each shareholder entitled
to vote at any meeting may vote either in person
or by proxy. Unless otherwise specified in the
Certificate of Incorporation or in a resolution,
or resolutions, of the Board providing for the
issuance of preferred stock, each shareholder
entitled to vote shall be entitled to one vote
for each share of capital stock registered in his
or her name on the transfer books or records of the
Corporation. Each shareholder entitled to vote may
authorize another person or persons to act for him
or her by proxy. All proxies shall be in writing,
signed by the shareholder or by his or her duly authorized
attorney-in-fact, and shall be filed with the
Secretary before being voted. No proxy shall be
valid after three (3) years from the date of its
execution unless otherwise provided in the proxy.
The attendance at any meeting by a shareholder
who shall have previously given a proxy applicable
thereto shall not, as such, have the effect of
revoking the proxy. The Corporation may treat any
duly executed proxy as not revoked and in full
force and effect until it receives a duly executed
instrument revoking it, or a duly executed proxy
bearing a later date. If ownership of a share of
voting stock of the Corporation stands in the name
of two or more persons, in the absence of written
directions to the Corporation to the contrary, any
one or more of such shareholders may cast all votes
to which such ownership is entitled. If an
attempt is made to cast conflicting votes by the
several persons in whose names shares of stock
stand, the vote or votes to which those persons
are entitled shall be cast as directed by a majority
of those holding such stock and present at such
meeting. If such conflicting votes are evenly
split on any particular matter, each faction may vote
the securities in question proportionally, or any
person voting the shares, or a beneficiary, if any,
may apply to the Court of Chancery or such other
court as may have jurisdiction to appoint an
additional person to act with the persons so voting
the shares, which shall then be voted as determined
by a majority of such persons and the person
appointed by the Court. Except for the election
of directors or as otherwise provided by law,
the Certificate of Incorporation or these Bylaws, at
all meetings of shareholders, all matters shall be
determined by a vote of the holders of a majority of
the number of votes eligible to be cast by the
holders of the outstanding shares of capital stock of
the Corporation present and entitled to vote
thereat. Directors shall, except as otherwise
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required by law, these Bylaws or the Certificate of
Incorporation, be elected by a plurality of the
votes cast by each class of shares entitled to vote
at a meeting of shareholders, present and entitled to
vote in the election.
3.13 Written Consent of Shareholders. Any
action required to be taken at any annual or special
meeting of shareholders of the corporation, or any action
which may be taken at any annual or special meeting
of such shareholders, may be taken without a
meeting, without prior notice and without a vote, if
a consent in writing, setting forth the action so
taken, shall be signed by the holders of
outstanding stock having not less than the minimum
number of votes that would be necessary to authorize
or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate
action without a meeting by less than unanimous
written consent shall be given to those
shareholders who have not consented in writing.
3.14 Procedure for Nominations. Subject to the
provisions hereof, the Nominating Committee of the
Board shall select nominees for election as directors.
Except in the case of a nominee substituted as
a result of the death, incapacity, withdrawal
or other inability to serve of a nominee, the
Nominating Committee shall deliver written
nominations to the Secretary at least sixty (60)
days prior to the date of the annual meeting.
Provided the Nominating Committee makes such
nominations, no nominations for directors except
those made by the Nominating Committee shall be
voted upon at the annual meeting of shareholders
unless other nominations by shareholders are made in
accordance with the provisions of this Section 3.14.
Nominations of individuals for election to the Board
at an annual meeting of shareholders may be made by
any shareholder of record of the Corporation
entitled to vote for the election of directors at
such meeting who provides timely notice in writing
to the Secretary as set forth in this Section
3.14. To be timely, a shareholder's notice must
be delivered to or received by the Secretary not
later than the following dates: (i) with respect to
an election of directors to be held at an annual
meeting of shareholders, sixty (60) days in advance
of such meeting if such meeting is to be held on a
day which is within thirty (30) days preceding the
anniversary of the previous year's annual meeting,
or ninety (90) days in advance of such meeting if
such meeting is to be held on or after the
anniversary of the previous year's annual meeting;
and (ii) with respect to an election to be held at
an annual meeting of shareholders held at a time
other than within the time periods set forth in
the immediately preceding clause (i), or at a
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special meeting of shareholders for the election of
directors, the close of business on the tenth (10th)
day following the date on which notice of such
meeting is first given to shareholders. For
purposes of this Section 3.14, notice shall be deemed
to first be given to shareholders when disclosure of
such date of the meeting of shareholders is first
made in a press release reported to Dow Jones
News Services, 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 Securities Exchange Act of 1934,
as amended. Such shareholder's notice shall set forth
(a) as to each person whom the shareholder proposes to
nominate for election or reelection as a director, (i) the
name, age, business address and residence address of
such person, (ii) the principal occupation or
employment of such person, (iii) such person's
written consent to serve as a director, if
elected, and (iv) such other information regarding
each nominee proposed by such shareholder as would be
required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and
Exchange Commission (whether or not the Corporation
is then subject to such rules); and (b) as to the
shareholder giving the notice (i) the name and
address of such shareholder as they appear on
the books and records of the Corporation, (ii)
the class and number of shares of the
Corporation which are owned of record by such
shareholder and the dates upon which he or she
acquired such shares, (iii) a descrip tion of all
arrangements or understandings between the
shareholder and nominee and any other person or
persons (naming such person or persons) pursuant to
which the nominations are to be made by the
shareholder, and (iv) the identification of any
person employed, retained, or to be
compensated by the shareholder submitting the
nomination or by the person nominated, or any person
acting on his or her behalf to make solicitations or
recommendations to shareholders for the purpose of
assisting in the election of such director, and a brief
description of the terms of such employment,
retainer or arrangement for compensation. At the request
of the Board, any person nominated by the Nominating
Committee for election as a director shall furnish to the
Secretary that information required to be set
forth in a shareholder's notice of nomination which
pertains to the nominee together with the
required written consent. No person shall be
elected as a director of the Corporation unless
nominated in accordance with the procedures set
forth in this Section 3.14.
The Chairman of the meeting shall, if the
facts warrant, determine and declare to the
meeting that a nomination was not
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properly brought before the meeting in
accordance with the
provisions hereof and, if he should so
determine, he shall declare to the meeting that
such nomination was not properly brought before the
meeting and shall not be considered.
3.15 Substitution of Nominees. In the event
that a person is validly designated as a nominee
in accordance with Section 3.14 of this Article III and shall
thereafter become unwilling or unable to stand for
election to the Board, the Nominating Committee may designate a
substitute nominee upon delivery, not
fewer than five (5) days prior to the date of the
meeting for the election of such nominee,
of a written notice to the Secretary
setting forth such information regarding such
substitute nominee as would have been required
to be delivered to the Secretary
pursuant to Section 3.14 of this Article III had
such substitute nominee been initially proposed as a nominee. Such
notice shall include a signed consent to serve
as a director of the Corporation, if elected, of each such substituted
nominee.
3.16 New Business. Any new business to be
taken up at the annual meeting at the request of the
Chairman of the Board, the President or by resolution
of at least three-fourths of the
entire Board shall be stated in writing and
filed with the Secretary at least fifteen
(15) days before the date of the
annual meeting, and all business so stated, proposed
and filed shall be considered at the
annual meeting, but, except as provided in this Section
3.16, no other proposal shall be acted
upon at the annual meeting. Any proposal
offered by any shareholder may be made at the annual meeting and the
same may be discussed and considered, but unless
properly brought before the meeting such proposal
shall not be acted upon at the meeting. For a
proposal to be properly brought before an annual
meeting by a shareholder, the shareholder must be a shareholder of record
and have given timely notice thereof in writing to
the Secretary. To be timely, a shareholder's
notice must be delivered to or
received by the Secretary not later than the
following dates:
(i) with respect to an annual meeting of
shareholders, sixty (60) days in advance of such
meeting if such meeting is to be held on a day which is within
thirty (30) days preceding the anniversary
of the previous year's annual meeting, or ninety
(90) days in advance of such meeting if such
meeting is to be held on or after the anniversary of
the previous year's annual meeting; and (ii) with
respect to an annual meeting of shareholders held at
a time other than within the time periods set forth
in the immediately preceding clause (i), the
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close of business on the tenth (10th)
day following the date on which notice of such
meeting is first given to shareholders. For
purposes of this Section 3.16, notice shall be deemed
to first be given to shareholders when disclosure of
such date of the meeting of shareholders is first
made in a press release reported to Dow Jones
News Services, 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 Securities Exchange Act of 1934,
as amended. A shareholder's notice to the Secretary shall set
forth as to the matter the shareholder proposes to
bring before the annual meeting (a) a
brief description of the proposal desired to be
brought before the annual meeting; (b) the name and address of the
shareholder proposing such business as
they appear on the books and records
of the Corporation; (c) the class and number of
shares of the Corporation which are owned of record by the
shareholder and the dates upon which he or she
acquired such shares; (d) the identification of
any person employed, retained, or to be
compensated by the shareholder submitting the
proposal, or any person acting on his or her
behalf, to make solicitations or recommendations to
shareholders for the purpose of assisting in the
passage of such proposal, and a brief description
of the terms of such employment,
retainer or arrangement for
compensation; (e) any material interest of the
shareholder in the business proposed; and (f) such
other information regarding such proposal as would
be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and
Exchange Commission or required to be delivered
to the Corporation pursuant to the proxy rules
of the Securities and Exchange Commission
(whether or not the Corporation is then subject to
such rules). This provision shall not prevent the
consideration and approval or disapproval at an
annual meeting of reports of officers, directors
and committees of the Board or the management
of the Corporation, but in connection with such
reports, no new business shall be acted upon at such
annual meeting unless stated and filed as herein
provided. This provision shall not
constitute a waiver of any right of the Corporation
under the proxy rules of the Securities and
Exchange Commission or any other rule or
regulation to omit a shareholder's proposal from the
Corporation's proxy materials.
The Chairman of the meeting shall, if
the facts warrant, determine and declare to the
meeting that any new business was not properly
brought before the meeting in accordance with the
provisions hereof and, if he should so determine,
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he shall declare to the meeting that such new business
was not properly brought before the meeting and
shall not be considered.
ARTICLE 4
DIRECTORS
4.1 General Powers. The business and
affairs of the Corporation shall be managed by or
under the direction of its Board. The Board may
adopt such rules and regulations, not inconsistent
with applicable laws or the Certificate of
Incorporation or these By-Laws as it may deem
proper for the conduct of its meetings and the
management of the Corporation.
4.2 Number; Qualification; Terms of Office.
The number of directors constituting the entire
Board shall not be less than three (3) nor more
than twelve (12). Within said limits the number
of directors shall be fixed from time to time
by resolution adopted by a majority of the
entire Board of Directors. Each director shall be at
least 21 years of age and no director joining the Board
after October 30, 2002 shall serve beyond his or her
seventy-fifth birthday; provided, however, that any
person serving on the Board on October 30, 2002
shall be eligible for reelection to consecutive
additional terms as a director beyond attaining
the age of seventy-five.
Except as otherwise provided by law or by these
By-Laws the directors shall be elected at the
annual meeting of the shareholders in each year.
The directors shall be divided into three classes,
as nearly equal in number as possible, with the
term of office of one class expiring each year;
i.e., as to the Corporation's First Board of Directors;
at the 1983 annual meeting of shareholders, for directors
of the first class; at the 1984 annual meeting, for
directors of the second class; and at the 1985 annual
meeting, for directors of the third class.
At each annual meeting of the shareholders
successors to the directors whose terms shall then
expire shall be elected to hold office for a term
expiring at the third succeeding annual meeting of
shareholders.
The foregoing notwithstanding, each director
shall serve until his successor has been elected and
qualified, or until his earlier resignation,
disqualification or removal.
4.3 Election. Directors shall, except as
otherwise provided by applicable laws, be elected at the
annual meeting of shareholders by a plurality vote of
the holders of shares entitled to vote in the
election.
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4.4 Organization. Meetings of the Board shall
be presided over by the Chairman of the Board or
such other director or officer as the Chairman of
the Board shall designate, and in the absence or
incapacity of the Chairman of the Board, the
presiding officer shall be the then senior member of
the Board in terms of length of service on the
Board (which length of service shall include
length of service on the Board of Directors of
Graham Manufacturing Co., Inc. and any
predecessors thereto). The Secretary or, in his absence,
a person appointed by the Chairman of the Board (or other
presiding person), shall act as secretary of the meeting.
The Chairman of the Board (or other person
presiding) shall conduct all meetings of the Board
in accordance with the best interests of the
Corporation and shall have the authority and
discretion to establish reasonable procedural rules
for the conduct of Board meetings. At the
discretion of the Chairman of the Board, any one
or more directors may participate in a meeting of the
Board or a committee of the Board by means of a
conference telephone or similar communications
equipment allowing all persons participating in the
meeting to hear each other at the same time.
Participation by such means shall constitute
presence in person at any such meeting.
4.5 Place of Meeting, etc. The Board may hold
its meetings within or without the State of
Delaware at such places as the Board may from
time to time by resolution determine or (unless
contrary to resolution of the Board) at such place
as shall be specified in the notice of the meeting.
4.6 Annual Meeting. After each annual
election of directors, the Board may meet, without
notice of such meeting, for the purposes of election of
officers, and the transaction of other business,
on the day when and at the place where such
annual election is held, and as soon as practicable
after such annual election. Such annual meeting may
be held at any other time and place specified
in a notice given as hereinafter provided for
special meetings of the Board or in a consent and
waiver of notice thereof.
4.7 Regular Meetings. Regular meetings of the
Board may be held at such times and places as may be
fixed from time to time by the Board; and, unless
required by the Board, notice of any such meeting
need not be given. If any day fixed for a regular
meeting shall be a legal holiday at the place where
the meeting is to be held, then the meeting, which
would otherwise be held on that day, shall be held
at the same hour at such place on the next
succeeding business day which is not a Saturday or
Sunday.
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4.8 Special Meetings. Special meetings of the
Board may be called for any purpose at any time by or
at the request of the Chairman of the Board or the
President. Special meetings of the Board shall
also be called by the Secretary upon the written
request, stating the purpose or purposes of the
meeting, of at least seventy-five percent (75%) of
the directors then in office. The persons
authorized to call special meetings of the Board
shall give notice of such meetings in the manner
prescribed by these By-laws and may fix any
place, within or without the Corporation's regular
business area, as the place for holding any special
meeting of the Board called by such persons. No
business shall be conducted at a special meeting
other than that specified in the notice of meeting.
4.9 Waivers of Notice of Meetings. Except
as otherwise provided in this Article IV, at least
twenty-four (24) hours notice of meetings shall be
given to each director if given in person or by
telephone, telegraph, telex, facsimile or other
electronic transmission and at least five (5) days
notice of meetings shall be given if given in
writing and delivered by courier or by postage
prepaid mail. The purpose of any special meeting
shall be stated in the notice. Such notice shall
be deemed given when sent or given to any mail or
courier service or company providing electronic
transmission service. Any director may waive notice
of any meeting by submitting a signed waiver of
notice with the Secretary, whether before or after
the meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such
meeting, except where a director attends a meeting
for the express purpose of objecting at the beginning
of the meeting to the transaction of any business
because the meeting is not lawfully called or
convened.
4.10 Telephonic Meetings. Any one or more
members of the Board or any Committee thereof may
participate in a meeting of the Board or such
Committee by means of conference telephone or
similar communication equipment allowing
all persons participating in the meeting to hear each
other at the same time. Participation by such means shall
constitute presence in person at such meeting.
4.11 Quorum and Manner of Acting. A majority of
the members of the Board then in office shall
constitute a quorum for the transaction of
business and the vote of a majority of the
directors present at the time of the vote, if a
quorum is present at such time, shall be the act of
the Board in all transactions, except those in which
a greater vote is required by law, by the
Certificate of Incorporation, or by the By-laws,
and in such transactions the vote of such greater
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number of directors shall be the act of the Board.
in the absence of a quorum a majority of the
directors present may adjourn any meeting from time
to time, without notice other than announcement at
the meeting, until a quorum is present.
4.12 Resignations. Any directors of the
Corporation may resign at any time by written
notification addressed to the President or the
Secretary of the Corporation. Such resignation shall
take effect upon receipt, and, unless otherwise
specified, the acceptance of such resignation shall
not be necessary to make it effective.
4.13 Removal of Directors. Any or all of the
directors may be removed at any time but only for
cause by the shareholders at any meeting of
shareholders, called for the purpose, by the
affirmative vote of 75% of the shares of the
Corporation entitled to vote and, if a corporation,
person or other entity owns more than 50% of the
shares of the Corporation entitled to vote, by
the affirmative vote of the holders of a majority of
the shares of the Corporation entitled to vote and
not owned by the majority shareholder.
4.14 Vacancies. To the extent not
inconsistent with the Certificate of
Incorporation and subject to the limitations
prescribed by law and the rights of holders of
Preferred Stock, vacancies in the office of
director, including vacancies created by newly
created directorships resulting from an increase in
the number of directors, shall be filled only by a
vote of a majority of the directors then holding
office, whether or not a quorum, at any regular or
special meeting of the Board called for that
purpose. Subject to the rights of holders of
Preferred Stock, no person shall be so elected a
director unless nominated by the Nominating
Committee. Subject to the rights of holders of
Preferred Stock, any director so elected shall
serve for the remainder of the full term of the
class of directors in which the new directorship was
created or the vacancy occurred and until his or
her successor shall be elected and qualified.
4.15 Compensation. Each director, in
consideration of his serving as such, shall be
entitled to receive from the Corporation such
reasonable amount per annum or such reasonable fees
for attendance at directors' meetings, or both, as the
Board shall from time to time determine, together with
reimbursement for the reasonable expenses incurred by
him in connection with the performance of his duties.
Each director who shall serve as a member of the Executive
Committee, if any, or any other committee of the Board, in
consideration of his serving as such, shall be
entitled to such additional amount per annum or
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such fees for attendance at committee meetings,
or both, as the Board shall from time to time
determine. Nothing in this section contained shall
preclude any director from serving the Corporation or
its subsidiaries in any other capacity and
receiving proper compensation therefor.
4.16 Board Action Without a Meeting. Whenever
any action is required or permitted to be taken by
the Board or any committee thereof, such action
may be taken without a meeting if all members of
the Board or the committee consent in writing to
the adopting of a resolution authorizing the
action and the resolution and the written consents
thereto by the members of the Board or committee are
filed with the minutes of the proceedings of the Board
or committee.
ARTICLE 5
COMMITTEES
5.1 How Constituted and Powers. By resolution
adopted by a majority of the entire Board, the
directors may designate from their number three or
more directors to constitute an Executive Committee
and other committees other than the Nominating
Committee, each of which, to the extent
provided in the resolution designating it, shall have
the authority of the Board of Directors with the
exception of any authority the delegation of which is
prohibited by law.
5.2 Nominating Committee. By resolution
adopted by at least seventy-five percent (75%)
of the entire Board, the directors shall
designate from their number at least three (3) but
no more than five (5) directors, to constitute a
Nominating Committee. No member of the Nominating
Committee shall vote on his or her own nomination.
The Nominating Committee shall review qualifications
of and interview candidates for the Board and shall
make nominations for election of board members in
accordance with the provisions of these Bylaws. A
quorum shall consist of at least one-third of the
members of the Committee, and in no event less than
two (2) members of the Committee. The Board may
remove a member of the Nominating Committee from
the Committee, with or without cause, only by a
vote of at least seventy-five per cent (75%) of
the entire Board at any regular or special meeting
of the Board called for that purpose, provided that
no ex-officio member of the Committee may be removed
from the Committee as long as such member remains a
director of the Corporation.
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ARTICLE 6
OFFICERS
6.1 Officers. The Board shall, as soon as
practicable after the annual meeting of shareholders
in each year elect a Chairman of the Board, a
President, a Treasurer and a Secretary, each to have
such functions or duties as are provided in these By-
laws or as the Board may from time to time
determine and each to hold office for the term
for which he is elected and until his successor
shall have been duly chosen and shall qualify, or
until his death, or until he shall resign or shall
have been removed in the manner hereinafter
provided. No officer need be a director. The Board
may, from time to time, appoint other officers or
assistant officers, each of whom shall hold
office for such period, have such authority, and
perform such duties as are provided in these By-
laws or as the Board may from time to time
determine. Any two or more offices may be held
by the same person, except the offices of President
and Secretary.
6.2 Removal of Officers. Except for the
Chairman of the Board, the Chief Executive Officer
or the President, any officer may be removed at
any regular meeting of the Board with or without
cause by an affirmative vote of a majority of the
entire Board. The Board may remove the Chairman of
the Board, the Chief Executive Officer or the
President at any time, with or without cause, only
by a vote of seventy-five percent (75%) of the non
officer directors then holding office at any regular
or special meeting of the Board called for that
purpose. Removal of an officer, however
effected, shall be without prejudice to his
contract rights, if any. Appointment or election of
an officer shall not of itself create contract
rights.
6.3 Vacancies. A vacancy in any office because
of death, resignation, removal, disqualification or
any other cause may be filled for the unexpired
portion of the term by the Board at any regular or
special meeting provided notice of such intent is
given.
6.4 Compensation. Salaries or other
compensation of the officers may be fixed from time
to time by the Board. No officer shall be prevented
from receiving a salary or other compensation by
reason of the fact that he is also a director
of the Corporation.
6.5 Chairman of the Board. The Chairman of the
Board shall preside at all meetings of the
shareholders and at all meetings of the Board and
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shall have such other powers and duties as may from
time to time be assigned to him by the Board.
6.6 President. The President shall have general
supervision over the business of the Corporation, subject,
however, to the control of the Board and of any
duly authorized committee of directors. He may,
with the Treasurer or the Secretary or an
Assistant Treasurer or an Assistant Secretary, sign
certificates for shares of the Corporation. He may sign and
execute in the name of the Corporation deeds,
mortgages, bonds, contracts and other instruments,
except in cases where the signing and
execution thereof shall be expressly delegated by the
Board or by any duly authorized committee of
directors or by these By-laws to some other officer
or agent of the Corporation, or shall be required
by law otherwise to be signed or executed, and,
in general, he shall perform all duties incident to
the office of President and such other
duties as from time to time may be
assigned to him by the Board or by any duly
authorized committee of directors. The President
shall hire, appoint, discharge and fix the
compensation of all employees, agents and
representatives of the Corporation, other than the
duly elected or appointed officers, subject to the
general supervision of the Board.
6.7 Vice Presidents. At the request of the
President, or in his absence or disability, at the
request of the Board, the Vice Presidents in the order
determined by the Board shall perform all the
duties of the President and so acting shall have all
the powers of and be subject to all the restrictions
upon the President. Any Vice President may also, with
the Treasurer or the Secretary or an Assistant
Treasurer or an Assistant Secretary,
sign certificates for shares of the Corporation;
may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts or
other instruments authorized by the Board or by any
duly authorized committee of directors, except in
cases where the signing and execution thereof shall
be expressly delegated by the Board or by any duly
authorized committee of directors or by
these By-laws to some other officer or agent of the
Corporation, or shall be required by law
otherwise to be signed or executed;
and shall perform such other duties as from time to
time may be assigned to him by the Board or by any
duly authorized committee of directors or by the
President.
6.8 Treasurer. The Treasurer shall, if
required, by the Board, give a bond for the faithful
discharge of his duties, in such sum and with such
sureties as the Board shall determine. He shall have
charge and custody of, and be responsible for, all funds,
18
securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the
Corporation from any sources whatsoever; deposit
all such moneys in the name of the Corporation in
such banks, trust companies or other depositaries as
shall be selected in accordance with these By-
laws; against proper vouchers cause such funds to be
disbursed by checks or drafts on the authorized
depositaries of the Corporation signed in such manner
as shall be determined in accordance with any provision
of these By-laws, and be responsible for the accuracy
of the amounts of all money so disbursed;
regularly enter or cause to be entered in books
to be kept by him or under his direction full and
adequate account of all moneys received or
paid by him for the account of the Corporation; have
the right to require, from time to time, reports or
statements giving such information as he may
desire with respect to any and all financial
transactions of the Corporation from the officers or
agents transacting the same; render to the
President, the Board or any duly authorized
committee of directors, whenever the President,
the Board or any duly authorized committee of
directors, respectively, shall require him so to do,
an account of the financial condition of the
Corporation and of all his transactions as
Treasurer; exhibit at all reasonable times his
books of account and other records to any of the
directors of the Corporation, upon application at
the office of the Corporation where such books
and records are kept; and in general, perform all
the duties incident to the office of Treasurer and
such other duties as from time to time may be
assigned to him by the Board or by any duly
authorized committee of directors or by the
President; and he may sign with the President or a
Vice President certificates for stock of the
Corporation.
6.9 The Secretary. The Secretary shall have
the duty to record the proceedings of the meetings
of the shareholders and directors in a book to be kept
for that purpose; he shall see that all notices
required to be given by the Corporation are duly
given and served; he may, with the President or any
of the Vice Presidents, sign certificates for
shares of the Corporation; he shall be custodian of
the seal of the Corporation and shall affix the seal
or cause it to be affixed to all certificates for
shares of the Corporation and to all documents the
execution of which on behalf of the Corporation
under its corporate seal is duly authorized in
accordance with the provisions of these By-laws; he
shall have charge of the stock ledger and also of
the other books, records and papers of the
Corporation relating to its organization and
management as a Corporation, and shall see that the
reports, statements and other documents required by
law are properly kept and filed; and shall, in
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general, perform all the duties incident to the
office of Secretary and such other duties as from
time to time may be assigned to him by the Board or
by any duly authorized committee of directors or by
the President.
6.10 Assistant Treasurers and Assistant
Secretaries. The Assistant Treasurers shall, respectively,
if required by the Board, give bonds for the faithful
discharge of their duties in such sums and with
such sureties as the Board shall require. Assistant
Treasurers and Assistant Secretaries shall perform
such duties as shall be assigned to each of them by
the Treasurer and by the Secretary, respectively,
or by the Board or by any duly authorized committee
of directors or by the President. Assistant
Treasurers and Assistant Secretaries may, with the
President or a Vice President, sign certificates for
stock of the Corporation.
ARTICLE 7
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
7.1 Checks, Drafts, Etc. All checks, drafts
and other orders for the payment of money out of
the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall
be signed on behalf of the Corporation in such
manner as shall from time to time be
determined by resolution of the Board or of any
duly authorized committee of directors.
7.2 Deposits. The funds of the Corporation
not otherwise employed shall be deposited from time to
time to the order of the Corporation in such banks, trust
companies or other depositaries as the Board or any
duly authorized committee of directors may select or
as may be selected by an officer or officers, agent
or agents, of the Corporation to whom such power may
from time to time be delegated by the Board or
any duly authorized committee of directors.
ARTICLE 8
STOCK AND DIVIDENDS
8.1 Transfer Agent and Registrar. The Board
shall have the power to appoint one or more Transfer
Agents and Registrars for the transfer and registration of
certificates of stock of any class, and may require
that stock certificates be countersigned and
registered by one or more of such Transfer
Agents and Registrars.
8.2 Registration and Transfer of Shares.
Subject to the provisions of the
Certificate of Incorporation of the Corporation,
20
the name of each person owning a
share of the capital stock of the Corporation shall
be entered on the books of the Corporation together
with the number of shares held by him or her, the
numbers of the certificates covering such shares and
the dates of issue of such certificates. Subject
to the provisions of the Certificate of
Incorporation of the Corporation, the shares of
stock of the Corporation shall be transferable on
the books of the Corporation by the holders thereof
in person, or by their duly authorized attorneys
or legal representatives, on surrender and
cancellation of certificates for a like number of
shares, accompanied by an assignment or power
of transfer endorsed thereon or attached thereto,
duly executed, with such guarantee or proof of the
authenticity of the signature as the Corporation or
its agents may reasonably require and with proper
evidence of payment of any applicable transfer taxes.
Subject to the provisions of the Certificate of
Incorporation of the Corporation, a record shall be
made of each transfer.
8.3 Lost, Destroyed, Stolen and Mutilated
Certificates. The Board may direct that a new
certificate be issued in place of any certificate
theretofore issued claimed to have been lost or
destroyed, provided it has received proof
satisfactory to it by affidavit or otherwise of
the facts surrounding the loss or
destruction of the certificate and the ownership
thereof at the time of such loss or destruction. As
a condition precedent to the issuance of a new
certificate, the Board may also require the alleged
owner to advertise the fact of the loss or
destruction in a newspaper chosen by the Board and/or
furnish to the Corporation a surety bond in form and
amount satisfactory to it indemnifying the
Corporation and its directors and officers from all
claims and expenses with respect to the certificate
claimed to have been lost or destroyed and the
duplicate certificate issued in place thereof.
8.4 Dividends, Surplus, Etc. Subject to the
provisions of the Certificate of Incorporation and
the law of the State of Delaware, the Board (i)
may declare dividends on the shares of the
Corporation in such amounts as, in its opinion, the
condition of the affairs of the Corporation shall
render advisable, (ii) may use and apply, in its
discretion, any of the surplus of the Corporation
or the net profits arising from its business in
purchasing or acquiring any of the shares of
stock of the Corporation or of purchase warrants
therefor in accordance with law, or any of its
bonds, debentures, notes, scrip or other securities
or evidences of indebtedness, and (iii) may set
aside from time to time out of such surplus or net
profits such sum or sums as it in its absolute
21
discretion may think proper, as a reserve fund to
meet contingencies, or equalizing dividends, or for
the purpose of maintaining or increasing the
property or business of the Corporation, or for
any other purpose it may think conducive to the
best interest of the Corporation.
8.5 Holder of Record. Subject to the
provisions of the Certificate of Incorporation of
the Corporation, the Corporation shall be entitled
to treat the holder of record of any share or shares
of stock as the holder thereof in fact and shall not
be bound to recognize any equitable or other claim to
or interest in such shares on the part of any other
person, whether or not it shall have express or
other notice thereof, except as otherwise expressly
provided by law.
ARTICLE 9
FORM OF RECORDS
Any records maintained by the Corporation in
the regular course of its business, including its
stock ledger, books of account, and minute books,
may be kept on, or be in the form of, punch cards,
magnetic tape, photographs, microphotographs, or any
other information storage device, provided that the
records so kept can be converted into clearly
legible written form within a reasonable time. The
Corporation shall so convert any records so kept
upon the request of any person entitled to inspect
the same.
ARTICLE 10
SEAL
The Board shall provide a corporate seal which
shall be in the form of a circle and shall bear
the full name of the Corporation and the year of
its incorporation, 1983.
ARTICLE 11
FISCAL YEAR
The Fiscal Year of the Corporation shall be
the calendar year unless otherwise determined by the
Board of Directors.
ARTICLE 12
VOTING OF STOCK HELD
Unless otherwise provided by resolution of the
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Board, the President may, from time to time,
appoint an attorney or attorneys or agent or
agents of this Corporation, including himself, in
the name and on behalf of the Corporation to cast the
votes which the Corporation may be entitled to
cast as a stockholder or otherwise in any other
corporation, any of whose stock or securities may
be held by the Corporation, at meetings
of the holders of the stock or other securities of
such other corporation, or to consent in writing to
any action by any such other corporation, and may
instruct the person or persons so appointed as to
the manner of casting such votes or giving such
consent, and may execute or cause to be executed on
behalf of the
Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers
or other instruments as he may deem necessary or
proper in the premises; or the President may
himself attend any meeting of the holders of
stock or other securities of any such other
corporation and thereat vote or exercise any or
all other powers of the Corporation as the holder of
such stock or other securities of such other
corporation.
ARTICLE 13
AMENDMENT
Except as otherwise provided by law or
under the Corporation's Certificate of Incorporation,
the By-laws of the Corporation may not be amended except
(a) by resolution adopted by vote of seventy-five
percent of the entire Board of Directors, (b) by the
shareholders voting upon a proposal recommended by
the affirmative vote of 75% of the entire Board of
Directors, or (c) by the affirmative vote of (i)
the holders of 75% of the shares of the Corporation
entitled to vote and (ii) if any corporation, person,
or other entity owns more than 50% of the shares of
the Corporation entitled to vote, the holders of a
majority of the shares of the Corporation entitled
to vote and not owned by the majority shareholder.
Any amendment made by the Board of 19
Directors and any proposed amendment adopted by
the Board of Directors for recommendation to the
Shareholders shall be adopted at a regular meeting
and may be adopted only if (a) a notice specifying
the change or amendment shall have been given at a
previous regular meeting and entered in the minutes
of the Board; (b) a written statement describing the
change or amendment shall be made in a notice
mailed to the directors of the meeting at which
the change or amendment shall be acted
upon. Notwithstanding the foregoing, any provision of
these Bylaws that contains a supermajority voting
requirement shall only be altered, amended, rescinded,
or repealed by the Board by a vote not less than the
supermajority specified in such provision.