Exhibit (3) (ii)
BY-LAWS
OF
GRAHAM CORPORATION1
(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.
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.
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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 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
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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 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
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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 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 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
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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 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
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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 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 re-election 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
description 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,
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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 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 re
ceived 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
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preceding clause (i), 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 3.16, 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, 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
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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.
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
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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.
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 Bylaws 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.
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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 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
12
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 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.
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
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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 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
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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, 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
15
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 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 reso
lution 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
16
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, 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 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
17
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, micro-photographs, 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 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
18
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
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. Notwith
standing the foregoing, any provision of these Bylaws that con
tains 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.
_______________________________
1 As amended on February 22, 1996, May 28, 1998, October 31,
2002, July 22, 2003 and June 3, 2004