BY-LAWS
OF
GRAHAM CORPORATION
(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.
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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
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
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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 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
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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 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
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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 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
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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 sub-
stituted 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
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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 Board 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 pro-
cedures 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 pro-
posed 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 act-
ed 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
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held at a time other than within the time periods set forth in the
immediately 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 arrange-
ment 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 regula-
tion 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.
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 estab-
lish reasonable procedural rules for the conduct of Board meetings.
At the discretion of the Chairman of the Board, any one or more di-
rectors may participate in a meeting of the Board or a committee of
the Board by means of a conference telephone or similar com-
munications 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
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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 con-
ducted 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.
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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. ln 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 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
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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
four (4) directors, none of whom shall be an officer or a salaried
employee of the Corporation or its subsidiaries, to constitute a
Nominating Committee. Notwithstanding the foregoing, no director
shall serve on the Nominating Committee in any capacity in any year
during which such director's term as a director is scheduled to
expire. 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.
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
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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 di-
rectors 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 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
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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 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
15
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 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,
the name of each person owning a share of the capital stock of the
Corporation shall be entered on the books of the Corporation to-
16
gether 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 authen-
ticity of the signature as the Corporation or its agents may rea-
sonably 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
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 ex-
pressly provided by law.
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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 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.
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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. 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.