AMCOL INTERNATIONAL CORPORATION
BY-LAWS
ARTICLE I
OFFICES
Section 1. Principal Offices. The principal office shall be in
the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The corporation may also have offices
at such other places both within and without the State of Delaware as the
Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the stockholders for
whatever purpose shall be held at such place, either within or without the
State of Delaware, and at such time as may be fixed from time to time by the
Board of Directors.
Section 2. Annual Meetings. Annual meetings of stockholders
shall be held on such date and at such time and place as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting.
Section 3. Notice of Annual Meeting. Written notice of the
annual meeting shall be given to each stockholder entitled to vote thereat
not fewer than ten days or more than sixty days before the date fixed for the
meeting.
Section 4. Special Meetings of Stockholders. Special meetings
of the stockholders, for any purpose or purposes, unless otherwise prescribed
by statute or by the certificate of incorporation, may be called by the Board
of Directors or by the Chairman of the Board, and shall be called by the
Chairman or the Chief Executive Officer at the request in writing of a
majority of the Board of Directors, or at the request in writing of
stockholders owning a majority in amount of the entire capital stock of the
corporation issued and outstanding and entitled to vote. Such request shall
state the purpose or purposes of the proposed meeting.
Section 5. Notice of Special Meetings. Written notice of a
special meeting of stockholders, stating the time, place and object thereof,
shall be given to each stockholder entitled to vote thereat, not fewer than
ten or more than sixty days before the date fixed for the meeting.
Section 6. Business which may be Transacted. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 7. Notice of Stockholder Business and Nominations.
(A) Annual Meeting of Stockholders. (1) Nominations of
persons for election to the Board of Directors of the Corporation and the
proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders (a) pursuant to the Corporation's notice of
meeting, (b) by or at the direction of the Board of Directors or (c) by any
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this By-Law, who is entitled to vote at the
meeting and who complies with the notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to clause (c) of
paragraph (A)(1) of this By-Law, the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation and such other
business must otherwise be a proper matter for stockholder action. To be
timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 60th day nor earlier than the close of business on the 90th
day prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of annual meeting is more
than 30 days before or more than 60 days after such anniversary date, notice
by the stockholder to be timely must be so delivered not earlier than the
close of business on the 90th day prior to such annual meeting and not later
than the close of business on the later of the 60th day prior to such annual
meeting or the 10th day following the day on which public announcement of the
date of such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting commence a new
time period for the giving of a stockholder's notice as described above.
Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director
all information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or
is otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and rule
14a-11 thereunder (including such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected);
(b) as to any other business that the stockholder proposes to bring before
the meeting, a brief description of the business desired to be brought before
the meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-Law to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all
of the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-Law shall
also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary
at the principal executive offices of the Corporation not later than the
close of business on the 10th day following the day on which such public
announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors may be made at
a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction of
the Board of Directors or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any
stockholder of the Corporation who is a stockholder of record at the time of
giving of notice provided for in this By-law, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
By-Law. In the event the Corporation calls a special meeting of stockholders
for the purpose of electing one or more directors to the Board of Directors,
any such stockholder may nominate a person or persons (as the case may be),
for election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (A)(2) of this
By-Law shall be delivered to the Secretary at the principal executive offices
of the Corporation not earlier than the close of business on the 90th day
prior to such special meeting and not later than the close of business on the
later of the 60th day prior to such special meeting or the 10th day following
the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected
at such meeting. In no event shall the public announcement of an adjournment
of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
(C) General. (1) Only such persons who are nominated in
accordance with the procedures set forth in this By-Law shall be eligible to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise provided by
law, the Certificate of Incorporation or these By-Laws, the Chairman of the
meeting shall have the power and duty to determine whether a nomination or
any business proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with the procedures set forth in this
By-Law and, if any proposed nomination or business is not in compliance with
this By-Law, to declare that such defective proposal or nomination shall be
disregarded.
(2) For purposes of this By-Law, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News
Service, 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 Exchange Act.
(3) Notwithstanding the foregoing provisions of this
By-Law, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this By-Law. Nothing in this By-Law shall be deemed to
affect any rights (i) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act or (ii) of the holders of any series of Preferred Stock to elect
directors under specified circumstances.
Section 8. Inspectors of Elections: Opening and Closing the
Polls. The Board of Directors by resolution shall appoint one or more
inspectors, which inspector or inspectors may include individuals who serve
the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives, to act at the meetings of
stockholders and make a written report thereof. One or more persons may be
designated as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate has been appointed to act or is able to
act at a meeting of stockholders, the Chairman of the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before
discharging his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall have the duties prescribed
by law.
The Chairman of the meeting shall fix and announce at the meeting
the date and time of the opening and the closing of the polls for each matter
upon which the stockholders will vote at a meeting.
Section 9. Record Date for Action by Written Consent. In order
that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix
a record date, which record date shall not precede the date upon which the
resolutions fixing the record date is adopted by the Board of Directors, and
which date shall not be more than 10 days after the date upon which the
resolution fixing the record date is adopted by the Board of Directors. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to the
Secretary, request the Board of Directors to fix a record date. The Board of
Directors shall promptly, but in all events within 10 days after the date on
which such a request is received, adopt a resolution fixing the record date.
If no record date has been fixed by the Board of Directors within 10 days of
the date on which such a request is received, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in Delaware, its principal
place of business or to any officer of agent of the Corporation having
custody of the book in which proceedings of meeting of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
Section 10. Inspectors of Written Consent. In the event of the
delivery, in the manner provided by Section 9, to the Corporation of the
requisite written consent or consents to take corporate action and/or any
related revocation or revocations, the Corporation shall engage nationally
recognized independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective
until such date as the independent inspectors certify to the Corporation that
the consents delivered to the Corporation in accordance with Section 9
represent at least the minimum number of votes that would be necessary to
take the corporate action. Nothing contained in this paragraph shall in any
way be construed to suggest or imply that the Board of Directors or any
stockholder shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after such certification by the
independent inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation).
Section 11. Quorum. The holders of a majority of the stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by
statute, the certificate of incorporation or these by-laws. If, however,
such quorum shall not be present or represented at any meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might
have been transacted at the meeting as originally noticed. If the
adjournment is for more than 30 days, or if after the adjournment a new
record date 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
meeting.
Section 12. Powers of the Stockholders. When a quorum is
present at any meeting, the vote of the holders of a majority of the stock
having voting power present in person or represented by proxy shall decide
any question brought before such meeting, unless the question is one upon
which by express provision of the statutes, the certificate of incorporation
or these by-laws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. Election
of directors at all meetings of the Stockholders at which directors are
elected shall be by ballot, and, subject to the rights of the holders of any
class or series of preferred stock to elect directors under specified
circumstances, a plurality of the votes cast thereat shall elect directors.
Section 13. Voting Rights of Stockholders. Each stockholder
shall at every meeting of the stockholders be entitled to one vote in person
or by proxy for each share of the capital stock having voting power held by
such stockholder, but no proxy shall be voted on after three years from its
date, unless the proxy provides for a longer period, and except where the
transfer books of the corporation have been closed or a date has been fixed
as a record date for the determination of its stockholders entitled to vote,
no share of stock shall be voted on at any election for directors which has
been transferred on the books of the corporation within twenty days next
preceding such election of directors.
Section 14. List of Stockholders. 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 said meeting, arranged in alphabetical order, showing the
address of and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder
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, town or village where the meeting is to be held and which place
shall be specified in the notice of the meeting or, if not specified, at the
place where said meeting is to be held, and the list shall be produced and
kept at the time and place of meeting during the whole time thereof, and
subject to the inspection of any stockholder who may be present.
Section 15. Action by Unanimous Written Consent of Stockholders
Instead of by Meeting. Unless otherwise provided in the Certificate of
Incorporation, whenever the vote of stockholders at a meeting is required or
permitted to be taken in connection with any corporate action by any
provisions of the statutes, the certificate of incorporation or these
by-laws, 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 entitles to vote thereon were present. Prompt
notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
Section 16. Manner of Sending Notice and Effective Date.
Notices to stockholders shall be sent by mail addressed to them at their
respective addresses appearing on the books of the corporation. Notice shall
be deemed to be given at the time the same shall be mailed.
Section 17. Proxy. At any meeting of the stockholders, every
stockholder entitled to vote may vote in person or by proxy authorized by an
instrument in writing or by a transmission permitted by law filed in
accordance with the procedure established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or
transmission created pursuant to this paragraph may be substituted or used in
lieu of the original writing or transmission for any and all purposes for
which the original writing or transmission could be used; provided that, such
copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission. All voting,
excepting where otherwise required by law, the Certificate of Incorporation
or the Board of Directors may be a voice vote.
Section 18. Chairman of meeting. The Chairman of the Board of
Directors shall preside at all meetings of the stockholders. In the absence
or inability to act of the chairman, the chief executive officer, the
president, an executive vice president or a vice president (in that order)
shall preside, and in their absence or inability to act another person
designated by one of them shall preside. The secretary of the Corporation
shall act as secretary of each meeting of the stockholders. In the event of
his absence or inability to act, the chairman of the meeting shall appoint a
person who need not be a stockholder to act as secretary of the meeting.
Section 19. Conduct of meetings. Meetings of the stockholders
shall be conducted in a fair manner but need not be governed by any
prescribed rules of order. The presiding officer's rulings on procedural
matters shall be final. The presiding officer is authorized to impose
reasonable time limits on the remarks of individual stockholders and may take
such steps as such officer may deem necessary or appropriate to assure that
the business of the meeting is conducted in a fair, orderly and prompt manner.
ARTICLE III
DIRECTORS
Section 1. Numbers and Manner of Election. The number of
directors which shall constitute the whole Board shall be a minimum of five
(5) and a maximum of fifteen (15). The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 2 of this
Article, and each director elected shall hold office until his or her
successor is elected and qualified. Directors need not be stockholders. No
decrease in the number of Directors shall shorten the term of any incumbent
director.
Section 2. Permissible Filling of Vacancies by Board. Vacancies
and newly created directorships resulting from any increase in the number of
directors may be filled by a majority of the directors then in office,
although less than a quorum, and the directors so chosen shall hold office
for a term expiring at the next election of the class for which such director
was elected and until his or her successor is duly elected and shall qualify.
Section 3. Powers of the Board. The business of the corporation
shall be managed by its Board of Directors which may exercise all such powers
of the corporation and do all such lawful acts and things as are not by
statute or by the certificate of incorporation or by these by-laws directed
or required to be exercised or done by the stockholders.
Section 4. Compensation of Directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of
Directors, and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees
may be allowed like compensation for attending committee meetings.
Section 5. Honorary Directors. The Board of Directors may, from
time to time, appoint such honorary directors as it shall deem appropriate.
Honorary directors shall be entitled to attend meetings of the Board but
shall have no power to vote and shall not be deemed to be members of the
Board of Directors for quorum and other purposes under these by-laws or
otherwise. Honorary directors shall receive no compensation but shall be
reimbursed for their reasonable travel and living expenses incurred in
attending meetings held more than fifty miles from their place of residence.
Appointments shall be for a term designated by the Board of Directors subject
to the right of the Board of Directors to terminate the appointment at any
time in its sole discretion.
Section 6. Executive Committee. The Board of Directors, by
resolution adopted by a majority of the number of Directors may designate two
or more Directors to constitute an Executive Committee, which Committee, to
the extent provided in such resolution, shall have and exercise all of the
authority of the Board of Directors in the management of the corporation
between meetings of the Board of Directors, except as otherwise required by
law. Vacancies in the membership of the Committee may be filled by the Board
of Directors at a regular or special meeting of the Board of Directors. The
Executive Committee shall keep regular minutes of its proceedings and report
the same to the Board when required.
Section 7. Other Committees. The Board of Directors by
resolution adopted by a majority of a number of Directors may designate two
or more Directors to constitute an additional Committee or Committees, which
Committee or Committees, to the extent provided in such resolution, shall
make recommendations to the Board of Directors as to all matters within the
scope of their respective Committee. Vacancies in the membership of a
Committee may be filled by the Board of Directors at a regular or special
meeting of the Board of Directors. Such Committee or Committees shall keep
regular minutes of its proceedings and report the same to the Board when
required.
Section 8. General. Any such committee, to the extent provided
in the resolution of the Board of Directors, shall have and may exercise all
the powers and authority 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 (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of
shares of stock adopted by the Board of Directors as provided in subsection
(a) of Section 151 of the General Corporation Law of the State of Delaware,
fix the designations and any of the preferences or rights of such shares
relating to dividends, redemption, dissolution, any distribution of assets of
the Corporation or the conversion into, or the exchange of such shares for,
shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of the
number of shares of any series), and if the resolution which designates the
committee or a supplemental resolution of the Board of Directors shall so
provide, such committee shall have the power and authority to adopt an
agreement of merger or consolidation, recommending to the stockholders the
sale, lease or exchange of all or substantially all the Corporation's
property and assets, recommending to the stockholders a dissolution, removing
or indemnifying directors or amending these by-laws; and, unless a resolution
of the Board of Directors so provided, no such committee shall have the power
or authority to declare a dividend, to authorize the issuance of stock or to
adopt a certificate of ownership or merger pursuant to Section 253 of the
General Corporation Law of the State of Delaware.
Section 9. Meetings. Each committee shall keep regular minutes
of its meetings and shall file such minutes and all written consents executed
by its members with the secretary of the Corporation. Each committee may
determine the procedural rules for meeting and conducting its business and
shall act in accordance therewith, except as otherwise provided herein or
required by law. Adequate provision shall be made for notice to members of
all meetings; a majority of the members shall constitute a quorum unless the
committee shall consist of one or two members, in which event one member
shall constitute a quorum; and all matters shall be determined by a majority
vote of the members present. Action may be taken by any committee without a
meeting if all members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of such committee.
Members of any committee of the Board of Directors may participate in any
meeting of such committee by means of conference telephone or similar
communications equipment by means of which all persons participating may hear
each other, and participation in a meeting by such means shall constitute
presence in person at such meeting.
ARTICLE IV
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Place of Meetings. The Board of Directors of the
corporation may hold meetings, both regular and special either within or
without the State of Delaware.
Section 2. Annual Meetings. The annual meeting of the Board of
Directors shall be held, at such time and place, as shall be fixed by order
of the Chairman of the Board of the corporation. At such meeting the
directors shall elect officers of the corporation to serve until the next
annual meeting of the Board and until their respective successors are elected
and qualified, and any other business may be transacted at this meeting which
falls within the scope of the powers of the Board. The annual meeting of the
Board of Directors shall be a regular meeting. Ten days notice of the annual
meeting shall be sent to each director by mail.
Section 3. Other Regular Meetings. The Board of Directors may
by resolution, which it may from time to time alter or rescind at its
discretion, establish other regular meetings, to be held at such times and
places and upon such notice (or without notice) as it shall determine.
Section 4. Special Meetings. Special meetings of the Board may
be called by resolution of the Board at a prior meeting, or by the Chairman
of the Board or Chief Executive Officer, on three days notice to each
director personally, or sent by mail or by telegram or facsimile; special
meetings shall be called by the Chairman of the Board or the secretary on
like notice, on request of three directors, provided that such request shall
state what matters the signers wish to have considered at the meeting. At
all special meetings of the Board, if the notice states that any matters
properly presented will be considered, the directors may take any action
within the scope of their powers, and it shall not be necessary that any
matters which are to be considered be specified in the notice unless required
by statute, by the certificate of incorporation, or elsewhere by these
by-laws.
Section 5. Manner of Giving Notice to Directors and Effective
Date. In the case of all notices of meetings of the Board of Directors,
other than those given personally, the same shall be sent to the directors at
their respective addresses appearing on the books of the corporation at least
seventy-two hours in advance of the meeting. Notice sent by mail shall be
deemed to be given at the time when the same shall be mailed, and if sent by
wire, at the time the telegram is delivered to the telegraph company and if
sent by facsimile when transmitted.
Section 6. Waiver of Notice. Whenever any notice is required to
be given under the provisions of the statutes or of the certificate of
incorporation or of these by-laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein shall be deemed equivalent thereto.
Section 7. Quorum. At all meetings of the Board a majority of
the directors then in office (but not less than three directors), shall
constitute a quorum for the transaction of business, and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors, except as may be otherwise
specifically provided by statute or by the certificate of incorporation. If
a quorum shall not be present at any meeting of the Board, the directors
present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
Section 8. Action by Unanimous Written Consent of Directors
Instead of by Meeting. Unless otherwise restricted by the certificate of
incorporation or these by-laws, any action required or permitted to be taken
at any meeting of the Board of Directors or any committee designated by the
Board of Directors may be taken without a meeting, if a written consent
thereto is signed by all members of the Board or such committee, and such
written consent is filed with the minutes of proceedings of the Board or such
committee.
Section 9. Telephonic meetings. Members of the Board of
Directors may participate in any meeting by means of conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation by such means shall
constitute presence in person at such meeting.
ARTICLE V
OFFICERS
Section 1. Specified Officers. The officers of the corporation
shall be a Chairman of the Board, a Chief Executive Officer, a Chief
Operating Officer, a President, one or more Executive Vice Presidents, such
number of other Vice Presidents as the Board shall from time to time
determine, a Chief Financial Officer, a Secretary, a Treasurer, such number
of Assistant Secretaries and Assistant Treasurers as the Board shall from
time to time determine and such other officers as the Board shall from time
to time determine. One person may hold and perform the duties of any lawful
number of said offices. The same person may not execute any document or
instrument on behalf of the corporation in more than one capacity. Failure
to elect any specified officer in any year shall not be deemed to be an
amendment to these by-laws, but shall be a conclusive presumption that the
office was deliberately left vacant.
Section 2. Election. All officers of the corporation shall be
elected by the Board of Directors. The Board at its annual meeting shall
elect a Chairman of the Board of Directors and a Chief Executive Officer from
among the directors, and shall elect the other officers specified in Section
1 hereof, none of whom need be members of the Board; provided that vacancies
occurring in any of said offices between annual meetings of the Board or any
additional offices created between such annual meetings, may be filled by the
Board at any meeting held between such annual meetings.
Section 3. Removal. Any officer elected by the Board of
Directors may be removed at any time by the affirmative vote of a majority of
the Board of Directors then in office. Any such removal shall be without
prejudice to the contractual rights of such officer or agent, if any, with
the Corporation, but the election of an officer or agent shall not of itself
create any contractual rights. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled for the
unexpired portion of the term by the Board of Directors.
Section 4. Term of Office. The officers of the corporation
shall hold office either until the annual meeting of the Board following
their election or until their respective successors are elected and qualify,
or for a lesser term as may be specified by the Board of Directors, subject
to the power of removal specified in Section 4 hereto.
Section 5. Chairman of the Board of Directors. The Chairman of
the Board of Directors shall preside at all meetings of the stockholders and
the Board of Directors of the corporation. The Chairman of the Board shall
designate another director to preside in his absence. In the event of the
absence of the Chairman of the Board without the designation of a director to
preside, the Chief Executive Officer shall preside. The Chairman may sign
and execute in the name of the corporation all authorized contracts, bonds,
mortgages, or other authorized corporate obligations or instruments, and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 6. Chief Executive Officer. The Chief Executive Officer
shall have general charge, control, direction and supervision over the
business and affairs of the corporation, subject to the control and direction
of the Board of Directors and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
Section 7. The President. The President shall have such duties
and exercise such powers as the Board of Directors may from time to time
prescribe under the direction of the Chief Executive Officer and subject to
the control of the Board of Directors. He may sign and execute in the name
of the corporation all authorized contracts, bonds, mortgages or other
authorized corporate obligations or instruments, and may with the Secretary
or an Assistant Secretary sign all certificates of the capital stock of the
corporation.
Section 8. Chief Operating Officer. The Chief Operating Officer
shall have general charge, control, direction and supervision over the
day-to-day operations of the corporation, under the direction of the Chief
Executive Officer, subject to the control of the Board of Directors and shall
perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 9. Chief Financial Officer. The Chief Financial Officer
shall be responsible for the financial affairs of the corporation, under the
direction of the Chief Executive Officer and subject to the control of the
Board of Directors and shall render to the Chief Executive Officer and the
Board of Directors at its regular meetings, or when the Board of Directors so
requires, an account of the financial condition of the corporation. He shall
also perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 10. Executive Vice President. The Executive Vice
President (or, if there shall be more than one, the Executive Vice Presidents
in the order designated by the Board of Directors, or in the absence of any
designation, then in order of their election) shall, in the absence or
disability of the President, perform the duties and exercise the powers of
the President and shall perform such other duties and have such other powers
as the Chief Executive Officer or the Board of Directors may from time to
time prescribe.
Section 11. Vice Presidents. The Vice Presidents in the order
of their election unless otherwise determined by the Board of Directors,
shall, in the absence or disability of the Chief Executive Officer, the
President, the Chief Operating Officer, or any Executive Vice Presidents,
perform the duties and exercise the powers of the President, and shall
perform such other duties and have such other powers as the Chief Executive
Officer or the Board of Directors may from time to time prescribe.
Section 12. The Secretary. The Secretary shall when practicable
attend all meetings of the Board of Directors and all meetings of the
stockholders, and record all the proceedings of the meetings of the
corporation and of the Board of Directors in a book to be kept for that
purpose, and shall perform like duties for the standing committees when
required. He shall give, or cause to be given, notice of all meetings of the
stockholders and notice of all meetings of the Board of Directors, where
required by the by-laws or by resolution or order of the Board. He shall
perform such other duties as may be prescribed by the Board of Directors or
the Chief Executive Officer of the corporation. He shall keep in safe
custody the seal of the corporation and, when authorized by the Board of
Directors, affix the same to any instrument requiring it and, when so
affixed, it shall be attested by his signature or by the signature of an
assistant secretary.
Section 13. The Assistant Secretary. The Assistant Secretary,
or if there be more than one, the Assistant Secretaries in the order of their
election, shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary, and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 14. The Treasurer.
(a) The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation, and shall cause to be
deposited all monies and other valuable effects in the name and to the credit
of the corporation in such depositories as may be designated by the Board of
Directors.
(b) He shall disburse or cause to be disbursed, the funds of
the corporation as may be ordered by the Board of Directors by general
resolution or otherwise, taking proper vouchers for such disbursements, and
shall render to the Chief Executive Officer and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account
of all his transactions as Treasurer.
(c) If required by the Board of Directors, he shall give the
corporation a bond (which shall be renewed every six years) in such sum and
with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for
the restoration to the corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind, in his possession or under his control,
belonging to the corporation.
Section 15. The Assistant Treasurers. The Assistant Treasurer,
or if there shall be more than one, the Assistant Treasurers in the order of
their election unless otherwise determined by the Board of Directors, shall,
in the absence or disability of the Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as the Board of Directors may from time to time
prescribe.
Section 16. Other officers. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and
powers.
Section 17. Duties of officers. Powers of attorney, proxies,
waivers of notice of meeting, consents and other instruments relating to
securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chairman of the Board, Chief Executive
Officer, President or any Vice President and any such officer may in the name
of and on behalf of the Corporation, take all such action as any such officer
may deem advisable to vote in person or by proxy at a meeting of security
holders of any corporation in which the Corporation may own securities and at
any such meeting shall possess and may exercise any and all rights and powers
incident to the ownership of such securities and which, as the owner thereof,
the Corporation might have exercised and possessed if present. The Board of
Directors may be resolution, from time to time confer like powers upon any
other person or persons.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Stock Certificates. Every holder of stock in a
corporation shall be entitled to have a certificate signed by, or in the name
of the corporation, by the Chairman of the Board of Directors, the Chief
Executive Officer or the President or an Executive Vice President or a Vice
President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary of such corporation certifying the number of shares
owned by him in such corporation. Any of or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the corporation with
the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
Section 2. Lost Certificates. The Board of Directors may direct
a new certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the corporation alleged to have been lost
or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When authorizing
such issue of a new certificate or certificates, the Board of Directors may
in its discretion and as a condition precedent to the issuance thereof,
require the owner of such lost or destroyed certificate or certificates, or
his legal representative, to advertise the same in such manner as it shall
require, and/or to give the corporation a bond in such sum as it may direct
as indemnity against any claim that may be made against the corporation with
respect to the certificate alleged to have been lost or destroyed.
Section 3. Transfer of Stock. Upon surrender to the corporation
or the transfer agent of the corporation of a certificate for shares duly
endorsed, or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its book.
Section 4. Fixing of 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 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, in advance, a record date, which shall not be more than sixty nor
less than ten days before the date of such meeting, nor more than sixty 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 5. Registered Stockholders. The corporation shall be
entitled to recognize the exclusive rights of a person registered on its
books as the owner of shares to receive dividends, and to vote as such owner,
and to hold liable for calls and assessments a person registered on its books
as the owner of shares, and not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person,
whether or not it shall have express or other notice thereof except as
otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
corporation, subject to the provisions of the certificate of incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the certificate of
incorporation.
Section 2. Reserves. Before payment of any dividend there may
be set aside out of any funds of the corporation available for dividends,
such sum or sums as the directors from time to time in their absolute
discretion think proper as a reserve or reserves to meet contingencies or for
equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purpose as the directors shall think conducive
to the interest of the corporation, and the directors may modify or abolish
any such reserve in the manner in which it was created.
Section 3. Banking Accounts. The Board of Directors may from
time to time by resolution establish banking accounts with such banks, trust
companies or other financial institutions wheresoever located, as it shall
see fit, and may in its sole discretion disestablish any of such banking
accounts or amend the resolutions establishing and governing the same.
Section 4. Checks, etc. All checks and demands for money and
notes of the corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate either in the resolutions pertaining to its banking accounts or
otherwise.
Section 5. Fiscal Year. The fiscal year of the corporation
shall coincide with the calendar year.
Section 6. Seal. The corporate seal shall have inscribed
thereon the name of the corporation, the year of its organization, and the
words "Corporate Seal, Delaware". The seal may be used by causing it or a
facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
These by-laws or any part thereof may be altered, amended or
repealed at any regular or special meeting of the stockholders or of the
Board of Directors, if such proposed alteration, amendment or repeal or the
substance thereof, be set forth in the notice of such meeting, together with
notice that the same will be proposed for adoption.
ARTICLE IX
INDEMNIFICATION
The Corporation shall indemnify those persons specified in
Article TWELFTH of the Corporation's certificate of incorporation, as amended
from time to time, to the extent, in the manner, and subject to compliance
with the applicable standards of conduct, provided by said Article TWELFTH.