Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
C&D TECHNOLOGIES, INC.
(a Delaware corporation, the "Corporation")
ARTICLE I
OFFICES
SECTION 1. OFFICES. The Corporation shall maintain its registered
office in the State of Delaware, which may but need not be the same as its place
of business. The Corporation may also have offices in such other places in the
United States or elsewhere as the Board of Directors may, from time to time,
appoint or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as properly may be conducted
at such meeting shall be held at such place, either within or without the State
of Delaware, and at such time and date as may be designated by the Board of
Directors and set forth in the notice of the meeting or in a duly executed
waiver thereof.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders for
any purpose may be called by the Board of Directors, the Chairman of the Board
or the President of the Corporation and shall be called by the President upon
written request of the holders of at least 40% of all of the issued and
outstanding stock of the Corporation entitled to vote. Notice of each special
meeting shall be given according to Section 3 of this Article II.
SECTION 3. NOTICE OF MEETINGS. Written notice of each meeting of the
stockholders of the Corporation, in which the place, date and time of the
meeting and, in the event of a special meeting, the purpose or purposes for
which it is called are set forth, shall be mailed to or delivered to each
stockholder of record entitled to vote thereat. Such notice shall be given not
less than ten days nor more than 60 days before the date of any such meeting.
Such notice shall state the purpose or purposes of the proposed meeting.
Business transacted at all special meetings shall be confined to the objects
stated in the notice thereof.
SECTION 4. QUORUM. At any meeting of the stockholders, the holders of a
majority of all of the issued and outstanding shares of stock of the Corporation
entitled to vote at the meeting, present in person or by proxy, shall constitute
a quorum for all purposes, except to the extent that the presence of a larger
number of stockholders may be required by law, by the Certificate of
Incorporation of the Corporation or by these By-laws.
SECTION 5. VOTING. Except as may be otherwise provided by law or by the
Certificate of Incorporation, at every meeting of the stockholders, every
stockholder entitled to vote thereat shall have the right to one vote for every
share having voting power standing in his name on the stock transfer books of
the Corporation on the record date fixed for the meeting. Upon the demand of any
stockholder entitled to vote at any meeting, the vote upon any question before
such meeting shall be by written ballot. All elections of directors shall be
decided by plurality vote. When a quorum exists at any meeting, the vote of the
holders of a majority of the shares having voting power present in person or by
proxy shall decide any matter brought before such meeting, unless a different
vote is otherwise required by these By-laws, the Corporation's Certificate of
Incorporation or law.
SECTION 6. VOTING LISTS. A complete list of the stockholders entitled
to vote at any meeting of stockholders, arranged in alphabetical order, with the
address of each, and the number of shares held by each, 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.
SECTION 7. INSPECTORS. In advance of any meeting of the stockholders,
the Corporation shall appoint inspectors of election, who need not be
stockholders, to act at such meeting or any adjournment, postponement or
continuation thereof. If no inspector of election is able to act at a meeting of
stockholders, the chairman of any such meeting shall make such appointment at
the meeting. The number of inspectors of election shall be one or three. No
person who is a candidate for office shall act as an inspector of election. If
there are three inspectors of election, the decision, act or certificate of a
majority shall be the decision, act or certificate of all.
SECTION 8. CHAIRMAN OF MEETINGS. The Chairman of the Board of Directors
of the Corporation shall preside at all meetings of stockholders and of the
Board of Directors, at which he is present. In the event of his absence or
disability, the Vice Chairman, if any be elected, or, in the event of the
absence or disability of the Vice Chairman, the President of the Corporation
shall preside at any such meetings.
SECTION 9. ACTION WITHOUT A MEETING. Subject to the provisions of
Section 11 of this Article II, unless otherwise provided by the Certificate of
Incorporation, any action required to be taken at any annual or special meeting
of stockholders, or any action which may be taken at any annual or special
meeting, 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 were
present and voted. Prompt notice of corporate action taken without a meeting by
less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
SECTION 10. ADJOURNMENT. At any meeting of stockholders of the Corpora
tion, if less than a quorum shall be present, a majority of the stockholders
entitled to vote at the meeting, present in person or by proxy, shall have the
power to adjourn the meeting to another time, place and date without notice
other than by announcement at the meeting so adjourned. Any business may be
transacted at any adjourned meeting that could have been transacted at the
meeting originally noticed, but only those stockholders entitled to vote at the
meeting originally noticed shall be entitled to vote at any adjourned meeting.
If the adjournment is for more than 30 days from the date of the meeting
originally noticed, or if after the adjournment a new record date, as provided
for in Section 5 of Article V of these By-laws is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the adjourned meeting.
SECTION 11. STOCKHOLDER PROPOSALS.
(a) Stockholder Proposals Relating to Nominations for and
Election of Directors.
(i) Nominations by a stockholder of candidates for
election to the Board of Directors by stockholders at a meeting of stockholders
or upon written consent without a meeting may be made only if the stockholder
complies with the procedures set forth in this Section 11(a), and any candidate
proposed by a stockholder not nominated in accordance with such provisions shall
not be considered or acted upon for execution at such meeting of stockholders.
(ii) A proposal by a stockholder for the nomination of
a candidate for election by stockholders as a director at any meeting of
stockholders at which directors are to be elected or upon written consent
without a meeting may be made only by notice in writing, delivered in person or
by first class United States mail postage prepaid or by reputable overnight
delivery service, to the Board of Directors of the Corporation to the attention
of the Secretary of the Corporation at the principal office of the Corporation,
within the time limits specified herein.
(iii) In the case of an annual meeting of stockholders,
any such written proposal of nomination must be received by the Board of
Directors not less than 90 calendar days nor more than 120 calendar days before
the first anniversary of the date on which the Corporation first mailed its
proxy statement to stockholders for the annual meeting of stockholders in the
immediately preceding year; provided, however, that in the case of an annual
meeting of stockholders that is called for a date that is not within 30 calendar
days before or after the first anniversary date of the annual meeting of
stockholders in the immediately preceding year, any such written proposal of
nomination must be received by the Board of Directors not less than five
business days after the date the Corporation shall have mailed notice to its
stockholders that an annual meeting of stockholders will be held or shall have
issued a press release, filed a periodic report with the Securities and Exchange
Commission or otherwise publicly disseminated notice that an annual meeting of
stockholders will be held.
(iv) In the case of a special meeting of stockholders,
any such written proposal of nomination must be received by the Board of
Directors not less than five business days after the earlier of the date that
the Corporation shall have mailed notice to its stockholders that a special
meeting of stockholders will be held or shall have issued a press release, filed
a periodic report with the Securities and Exchange Commission or otherwise
publicly disseminated notice that a special meeting of stockholders will be
held.
(v) In the case of stockholder action by written
consent with respect to the election by stockholders of a candidate as director,
the stockholder seeking to have the stockholders elect such candidate by written
consent shall, by written notice to the Board of Directors, set forth the
information prescribed in clause (vi) of this Section 11(a) and request the
Board of Directors to fix a record date for determining stockholders entitled to
consent to corporate action in writing without a meeting. The Board of Directors
shall promptly, but in no event later than the tenth day after the date on which
such notice is received, adopt a resolution fixing such record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which date shall not be
more than ten days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. If no record date is fixed by the
Board of Directors within such time period, such record date shall be determined
in accordance with the provisions of Section 213(b) of the Delaware General
Corporation Law, or any successor provision.
(vi) Such written proposal of nomination shall set
forth: (A) the name and address of the stockholder who intends to make the
nomination (the "Nominating Stockholder"), (B) the name, age, business address
and, if known, residence address of each person so proposed, (C) the principal
occupation or employment of each person so proposed for the past five years, (D)
the number of shares of capital stock of the Corporation beneficially owned
within the meaning of Securities and Exchange Commission Rule 13d-1 by each
person so proposed and the earliest date of acquisition of any such capital
stock, (E) a description of any arrangement or understanding between each person
so proposed and the stockholder(s) making such nomination with respect to such
person's proposal for nomination and election as a director and actions to be
proposed or taken by such person if elected a director, (F) the written consent
of each person so proposed to serve as a director if nominated and elected as a
director and (G) such other information regarding each such person as would be
required under the proxy solicitation rules of the Securities and Exchange
Commission if proxies were to be solicited for the election as a director of
each person so proposed.
(vii) If a written proposal of nomination submitted to
the Board of Directors fails, in the reasonable judgment of the Board of
Directors or a nominating committee established by it, to contain the
information specified in clause (vi) of this Section 11(a) or is otherwise
deficient, the Board of Directors shall, as promptly as is practicable under the
circumstances, provide written notice to the stockholder(s) making such
nomination of such failure or deficiency in the written proposal of nomination
and such nominating stockholder shall have five business days from receipt of
such notice to submit a revised written proposal of nomination that corrects
such failure or deficiency in all material respects.
(b) Stockholder Proposals Relating to Matters Other Than
Nominations for and Elections of Directors.
(i) A stockholder of the Corporation may bring a matter
(other than a nomination of a candidate for election as a director, which is
covered by Section 11(a)) (a "Stockholder Matter") before a meeting of
stockholders or for action by written consent without a meeting only if such
Stockholder Matter is a proper matter for stockholder action and such
stockholder shall have provided notice in writing, delivered in person or by
first class United States mail postage prepaid or by reputable overnight
delivery service, to the Board of Directors of the Corporation to the attention
of the Secretary of the Corporation at the principal office of the Corporation,
within the time limits specified in this Section 11(b); provided, however, that
a proposal submitted by a stockholder for inclusion in the Corporation's proxy
statement for an annual meeting that is appropriate for inclusion therein and
otherwise complies with the provisions of Rule 14a-8 under the Securities
Exchange Act of 1934 (including timeliness) shall be deemed to have also been
submitted on a timely basis pursuant to this Section 11(b).
(ii) In the case of an annual meeting of stockholders,
any such written notice of a proposal of a Stockholder Matter must be received
by the Board of Directors not less than 90 calendar days nor more than 120
calendar days before the first anniversary of the date on which the Corporation
first mailed its proxy statement to stockholders for the annual meeting of
stockholders in the immediately preceding year; provided, however, that in the
case of an annual meeting of stockholders that is called for a date which is not
within 30 calendar days before or after the first anniversary date of the annual
meeting of stockholders in the immediately preceding year, any such written
notice of a proposal of a Stockholder Matter must be received by the Board of
Directors not less than five business days after the date the Corporation shall
have mailed notice to its stockholders that an annual meeting of stockholders
will be held, issued a press release, filed a periodic report with the
Securities and Exchange Commission or otherwise publicly disseminated notice
that an annual meeting of stockholders will be held.
(iii) In the case of a special meeting of stockholders,
any such written notice of a proposal of a Stockholder Matter must be received
by the Board of Directors not less than five business days after the earlier of
the date the Corporation shall have mailed notice to its stockholders that a
special meeting of stockholders will be held, issued a press release, filed a
periodic report with the Securities and Exchange Commission or otherwise
publicly disseminated notice that a special meeting of stockholders will be
held.
(iv) In the case of stockholder action by written
consent, the stockholder seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the Board of
Directors, set forth the written proposal and request the Board of Directors to
fix a record date for determining stockholders entitled to consent to corporate
action in writing without a meeting. The Board of Directors shall promptly, but
in no event later than the tenth day after the date on which such notice is
received, adopt a resolution fixing such record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which date shall not be more than ten days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. If no record date is fixed by the Board of Directors within
such time period, such record date shall be determined in accordance with the
provisions of Section 213(b) of the Delaware General Corporation Law, or any
successor provision.
(v) Such written notice of a proposal of a Stockholder
Matter shall set forth information regarding such Stockholder Matter equivalent
to the information regarding
such Stockholder Matter that would be required under the proxy solicitation
rules of the Securities and Exchange Commission if proxies were solicited for
stockholder consideration of such Stockholder Matter at a meeting of
stockholders.
(vi) If a written notice of a proposal of a Stockholder
Matter submitted to the Board of Directors fails, in the reasonable judgment of
the Board of Directors, to contain the information specified in clause (v)
hereof or is otherwise deficient, the Board of Directors shall, as promptly as
is practicable under the circum stances, provide written notice to the
stockholder who submitted the written notice of presentation of a Stockholder
Matter of such failure or deficiency in the written notice of presentation of a
Stockholder Matter and such stockholder shall have five business days from
receipt of such notice to submit a revised written notice of presentation of a
matter that corrects such failure or deficiency in all material respects.
(vii) Only Stockholder Matters submitted in accordance
with the foregoing provisions of this Section 11(b) shall be eligible for
presentation at such meeting of stockholders or for action by written consent
without a meeting, and any Stockholder Matter not submitted to the Board of
Directors in accordance with such provisions shall not be considered or acted
upon at such meeting of stockholders or by written consent without a meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWERS. The property, business and affairs of the
Corporation shall be managed and controlled by its Board of Directors. The Board
shall exercise all of the powers of the Corporation except as are by law, the
Corporation's Certificate of Incorporation or these By-laws conferred upon or
reserved to the stockholders.
SECTION 2. NUMBER AND TERM. The number of directors shall be at least
three. Within the limits specified above, the number of directors shall be
designated from time to time by the Board. The Board of Directors shall be
elected by the stockholders at the annual meeting of stockholders, and each
director shall be elected to serve for the term of one year and until his
successor shall be elected and qualified or until his earlier death, resignation
or removal.
SECTION 3. RESIGNATIONS. Any director or member of a committee of the
Board may resign at any time. Such resignation shall be made in writing, and
shall take effect at the time specified therein, and if no time be specified, at
the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
SECTION 4. REMOVAL. Any director or the entire Board of Directors may
be removed either for or without cause at any time by the affirmative vote of
the holders of a majority of all the shares of stock outstanding and entitled to
vote for the election of directors at any annual or special meeting of the
stockholders called for that purpose. Vacancies thus created may be filled by a
majority vote of the directors then in office, although less than a quorum, or
by a sole remaining director.
SECTION 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies in the
office of any director or member of a committee of the Board of Directors and
newly created directorships may be filled by a majority vote of the remaining
directors in office, although less than a quorum or by a remaining sole
director. Any director so chosen shall hold office for the unexpired term of his
predecessor and until his successor shall be elected and qualified or until his
earlier death, resignation or removal. However, the directors may not fill the
vacancy created by removal of a director by electing the director so removed.
SECTION 6. MEETINGS. Regular meetings of the directors may be held
without notice at such places and times as shall be determined from time to time
by resolution of the directors. Special meetings of the board may be called by
Chairman of the Board, the President and shall be called by the Secretary on the
written request of any two directors with at least one day's notice to each
director. A special meeting shall be held at such place or places as may be
determined by the directors or as shall be stated in the notice of the meeting.
SECTION 7. QUORUM, VOTING AND ADJOURNMENT. The presence of at least a
majority of the total number of directors or of any committee of the Board shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors or committee of the Board, as the case may be. At any meeting of
the Board or any committee of the Board, if less than a quorum be present, a
majority of the directors or committee members present may adjourn the meeting
from time to time until a quorum is present. No notice of such adjourned meeting
need be given other than the announcement at the meeting so adjourned. The vote
of a majority of the directors or committee members present at the meeting at
which a quorum is present shall be the act of the Board or any committee of the
Board as the case may be.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by a majority of the entire Board, designate one or more
committees, including but not limited to an Executive Committee and an Audit
Committee, each such committee to consist of one or more of the directors of the
Corporation. The Board may designate one or more directors as alternate members
of any committee, to replace any absent or disqualified member at any meeting of
the committee. Any such committee, to the extent specified by the resolution of
the Board, may have and exercise the powers of the Board of Directors in the
management of the business and affairs of the Corporation and may authorize the
seal of the Corporation to be affixed to all papers which may require it; but no
such committee shall have the power or authority in reference to amending the
Certificate of Incorporation of the Corporation, adopting an agreement of merger
or consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these By-laws; and, unless the enabling
resolution of the Board expressly so provides, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock
of the Corporation. All committees of the Board shall report their proceedings
to the Board when required.
SECTION 9. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee of the
Board may be taken without notice and without a meeting if all members of the
Board or committee, as the case may be, consent to the action in writing.
Members of the Board of Directors or of any committee of the Board, may
participate in a meeting of the Board or committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this section shall constitute presence in person at such meeting.
SECTION 10. COMPENSATION. The Board of Directors may from time to time,
in its discretion, fix the amounts which shall be payable to directors and to
members of any committee of the Board for attendance at the meetings of the
Board of Directors or of such committee and for services rendered to the
Corporation. Any director may serve the Corporation in any other capacity as an
officer, agent or otherwise, and receive compensation therefor.
SECTION 11. CORPORATE BOOKS. The books of the Corporation, except such
as are required by law to be kept within the state, may be maintained outside
the State of Delaware, at such places as the Board of Directors may from time to
time determine.
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Corporation shall be a Chairman of the
Board, a President, one or more Vice Presidents, a Treasurer and a Secretary. In
addition, the Board of Directors may elect a Vice Chairman of the Board and
additional Vice Presidents, including an Executive Vice President, one or more
Assistant Treasurers and one or more Assistant Secretaries. Each officer of the
Corporation shall hold office for such term, have such authority and perform
such duties as set forth in these By-Laws or as may be prescribed from time to
time by the Board of Directors. Any number of offices may be held by the same
person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such other officers and agents as it deems advisable, who shall hold
their office for such terms and shall exercise such powers and perform such
duties as shall be determined from time to time by the Board of Directors.
SECTION 3. CHAIRMAN. The Chairman of the Board of Directors must be a
director of the Corporation. The Chairman shall preside at all meetings of the
Board of Directors and of the stockholders and shall have such powers and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
SECTION 4. VICE CHAIRMAN. The Vice Chairman of the Board of Directors,
if any be elected, shall generally aid and assist the Chairman of the Board and
shall have such powers and shall perform such duties of the Chairman of the
Board, in the absence or disability of such officer. In addition, the Vice
Chairman of the Board shall have such powers and perform such other duties as
from time to time may be assigned to him by the Board of Directors.
SECTION 5. PRESIDENT. The President shall be the Chief Executive
Officer of the Corporation and shall, in connection with the performance of his
duties, report directly to the Board of Directors. He shall perform such other
duties as may be prescribed from time to time by the Board or these By-laws. In
the absence, disability or failure of the Chairman of the Board or Vice Chairman
of the Board, if any shall be elected, to act, or a vacancy in such offices, the
President shall preside at all meetings of the stockholders and of the Board of
Directors.
SECTION 6. VICE PRESIDENTS. Each Vice President (of whom one or more
may be designated an Executive Vice President) shall generally aid and assist
the President in such manner as the President shall direct. Each Vice President
shall have such powers and shall perform such duties as shall be assigned to him
by the President or the Board of Directors.
SECTION 7. TREASURER. The Treasurer shall have the custody of the corpo
rate funds, securities, evidences of indebtedness and other valuables of the
Corporation and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuables in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors or the President. He shall render to the President and Board of
Directors, upon their request, a report of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the board shall prescribe.
SECTION 8. SECRETARY. The Secretary will cause minutes of all meetings
of the stockholders and directors to be recorded and kept; cause all notices
required by these By-Laws or otherwise to be given properly and see that the
minute books, stock books, and other non-financial books of the Corporation are
kept properly. In addition, the Secretary shall have such powers and shall
perform such duties as shall be assigned to him by the Board of Directors.
SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Each
Assistant Treasurer and each Assistant Secretary, if any shall be elected, shall
be vested with all the powers and shall perform all the duties of the Treasurer
and Secretary, respectively, in the absence or disability of such officer,
unless or until the Board of Directors shall otherwise determine. In addition,
Assistant Treasurers and Assistant Secretaries shall have such powers and shall
perform such duties as shall be assigned to them by the Board of Directors.
SECTION 10. CORPORATE FUNDS AND CHECKS. The funds of the Corporation
shall be kept in such depositories as shall from time to time be prescribed by
the Board of Directors. All checks or other orders for the payment of money
shall be signed by such officers, employees or agents as may from time to time
be authorized by the Board of Directors, with such countersignature, if any, as
may be required by the Board of Directors.
SECTION 11. CONTRACTS AND OTHER DOCUMENTS. The Chairman of the Board,
the President, any Vice President or the Treasurer, or such other officer or
officers as may from time to time be authorized by the Board of Directors, shall
have the power to sign and execute on behalf of the Corporation deeds, bonds,
mortgages/ conveyances and contracts, and any and all other documents requiring
execution by the Corporation and shall cause the seal to be affixed to any
instrument requiring it and, when so affixed, the seal shall be attested by the
signature of the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer.
SECTION 12. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The Chairman of
the Board, the President, any Vice President, the Treasurer, the Secretary, or
such other officer or person as shall be authorized by the Board of Directors,
shall have power and authority on behalf of the Corporation to attend and to
vote at any meeting of the stockholders of any corporation in
which this Corporation may hold stock; may exercise on behalf of this
Corporation any and all of the rights and powers incident to the ownership of
such stock at any such meeting; and shall have power and authority to execute
and deliver proxies and consents on behalf of this Corporation in connection
with the exercise by this Corporation of the rights and powers incident to the
ownership of such stock.
SECTION 13. DELEGATION OF DUTIES. The Board of Directors may delegate
to another officer or director, the powers or duties of any officer, in case of
such officer's absence, disability or refusal to exercise such powers or perform
such duties.
SECTION 14. RESIGNATION AND REMOVAL. Any officer of the Corporation may
be removed from office for or without cause at any time by the Board of
Directors. Any officer may resign at any time in the same manner prescribed for
the resignation of directors of the Corporation and as set forth in Section 3 of
Article III of these By-laws.
SECTION 15. VACANCIES. In case any office shall become vacant, the
Board of Directors shall have power to fill such vacancy.
ARTICLE V
STOCK
SECTION 1. CERTIFICATES OF STOCK. Certificates for stock of the
Corporation shall be numbered and shall be in such form as the Board of
Directors may, from time to time, prescribe; shall be signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary (or shall bear
the facsimile signatures of such officers); and shall be issued to each
stockholder to evidence the number and class of shares of stock in the
Corporation owned by him. The Board of Directors shall have power to appoint one
or more transfer agents and/or registrars for the transfer and/or registration
of certificates of stock of any class, and may require that stock certificates
shall be countersigned and/or registered by one or more of such transfer agents
and/or registrars.
SECTION 2. TRANSFER OF SHARES. The shares of stock of the Corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the Corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such person as the Board of Directors may designate, by whom they shall be
canceled, and new certificates shall thereupon be issued. A record shall be made
of each transfer and whenever a transfer shall be made for collateral security,
and not absolutely, it shall be so expressed in the entry of the transfer. The
Board of Directors shall have power and authority to make all such rules and
regulations as it may deem necessary or proper concerning the issue, transfer
and registration of all or any certificates for shares of stock of the
Corporation.
SECTION 3. LOST CERTIFICATES. A new certificate of stock may be issued
in the place of any certificate previously issued by the Corporation, alleged to
have been lost, stolen, destroyed or mutilated, and the Board of Directors may,
in its discretion, require the owner of the lost, stolen, destroyed or mutilated
certificate, or his legal representatives, to give the
Corporation a bond, in such sum as it may direct, not exceeding double the value
of the stock, to indemnify the Corporation against any claim that may be made
against it on account of the alleged loss or mutilation of any such certificate,
or the issuance of any such new certificate.
SECTION 4. STOCKHOLDERS OF RECORD. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder
thereof, in fact, and shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise expressly
provided by law.
SECTION 5. STOCKHOLDERS RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or, subject to the relevant provisions
of Section 11 of Article II, to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or 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 of Directors may fix a record date, which shall
not be more than 60 nor less than ten days before the date of the holding of
such meeting or the date of the taking of any of the aforementioned actions, nor
more than 60 days prior to any other action. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
SECTION 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorpo ration, the Board of Directors may at any regular or special meeting,
out of funds legally available therefor, declare dividends upon the stock of the
Corporation as and when it deems appropriate. Before declaring any dividend
there may be set apart, out of any funds of the Corporation available for
dividends, such sum or sums as the Board of Directors from time to time in its
discretion deems proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board shall deem conducive to the interests of the Corporation.
ARTICLE VI
NOTICE AND WAIVER OF NOTICE
SECTION 1. NOTICE. Whenever notice is required to be given to any
director, committee member, officer, stockholder, employee or agent, whether
pursuant to law, the Certificate of Incorporation of the Corporation or these
By-laws, it shall not be construed to mean personal notice, but such notice may
be given, in the case of stockholders, in writing, by depositing the same in the
mail, postage prepaid, or by overnight carrier addressed to such stockholders at
his last known address as the same appears on the books of the Corporation, and,
in the case of directors, committee members, officers, employees and agents, by
telephone, or by mail, postage prepaid, or by prepaid telegram at his last known
address as the same appears on the books of the Corporation. All notices shall
be deemed to be given when mailed, telegraphed or telephoned.
SECTION 2. WAIVER OF NOTICE. Whenever any notice is required to be
given by law, the Certificate of Incorporation of the Corporation or these
By-laws, a written waiver of notice signed by the person entitled to notice,
whether before or after the time stated in the notice, shall be deemed
equivalent to notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, unless prior to the end of the meeting the
person objects to the transaction of any business because the meeting is not
lawfully noticed or convened. Neither the business to be transacted at, nor the
purpose of, any meeting of the stockholders, directors, or members of a
committee of the Board need be specified in any written waiver of notice.
ARTICLE VII
AMENDMENT OF BY-LAWS
SECTION 1. AMENDMENTS. These By-laws may be altered, amended or
repealed (i) by the affirmative vote of the holders of a majority of all of the
issued and outstanding shares of stock of the Corporation entitled to vote
thereon at any annual or special meeting duly convened after notice to the
stockholders of that purpose or (ii) by a majority vote of the members of the
Board of Directors at any regular or special meeting of the Board of Directors
duly convened after notice to the Board of Directors of that purpose, subject
always to the power of the stockholders to change such action of the Board of
Directors by the vote of the stockholders required in clause (i) of this Article
VII.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. SEAL. The seal of the Corporation shall be circular in form
and shall have the name of the Corporation "C&D Technologies, Inc." on the
circumference and the words and numerals "Delaware 1985" in the center.
SECTION 2. FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by resolution of the Board of Directors.
SECTION 3. INDEMNIFICATION. To the fullest extent permitted by the laws
of the State of Delaware:
(a) The Corporation shall indemnify any person, his heirs,
executors or administrators, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding
(brought by or in the right of the Corporation or otherwise), whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director or officer of the corporation, or is or was serving at the
request of the Corporation as a director, officer, partner, trustee, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
or such heirs, executors or administrators in connection with such action, suit
or proceeding.
(b) The Corporation may indemnify any person, his heirs,
executors or administrators, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding
(brought by or in the right of the Corporation or otherwise), whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was an employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against all expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person or such
heirs, executors or administrators in connection with such action, suit or
proceeding.
(c) The Corporation may, in the discretion of the Board of
Directors, pay expenses incurred in defending any action, suit or proceeding
described in subsection (a) or (b) of this Section 3 in advance of the final
disposition of such action, suit or proceeding.
(d) The Corporation may purchase and maintain insurance on
behalf of any person described in subsection (a) or (b) of this Section 3
against any liability asserted against him, whether or not the Corporation would
have the power to indemnify him against such liability by law.
The indemnification provided by this Section 3 shall not be
deemed exclusive of any other rights to indemnification to which those seeking
indemnification may be entitled under any By-law, agreement, vote of
stockholders or disinterested directors or otherwise.
As amended on February 22, 2000.