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Exhibit 3.2
BYLAWS OF HEXCEL CORPORATION
A DELAWARE CORPORATION
AMENDED AND RESTATED AS OF APRIL 25, 2001
OFFICES
1. PRINCIPAL EXECUTIVE OFFICE. The principal executive office of the
Corporation is hereby fixed and located at 2 Stamford Plaza, Stamford,
Connecticut. The Board of Directors is hereby granted full power and authority
to change the place of said principal executive office from time to time.
2. OTHER OFFICES. The registered office of the Corporation in the State of
Delaware is hereby fixed and located at 1209 Orange Street, Wilmington,
Delaware, c/o The Corporation Trust Company. The Board of Directors is hereby
granted full power and authority to change the place of said registered office
within the State of Delaware from time to time. 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 designate or as the business of the Corporation
may from time to time require.
STOCKHOLDERS
3. PLACE OF MEETINGS. Stockholders' meetings shall be held at such
place, whether within or without the State of Delaware, as the Board of
Directors shall, by resolution, designate.
4. ANNUAL MEETINGS. Annual meetings of stockholders shall be held on such
dates and at such times as shall be designated from time to time by the Board of
Directors and stated in the notice of such annual meeting. At such annual
meetings directors shall be elected and such other business as may be properly
brought before such meeting shall be conducted.
Written notice of each annual meeting shall be mailed to or delivered to
each stockholder of record entitled to vote thereat not less than ten (10) days
nor more than sixty (60) days before the date of such annual meeting. Such
notice shall specify the place, the day, and the hour of such meeting, and the
matters which the Board of Directors intends to present for action by the
stockholders.
Except to the extent, if any, specifically provided to the contrary in the
Certificate of Incorporation or these Bylaws, to be properly brought before an
annual
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meeting, all business must be either (a) specified in the notice of
annual meeting (or any supplement thereto) given by or at the direction of the
Board of Directors, (b) otherwise properly brought before the annual meeting by
or at the direction of the Board of Directors or (c) otherwise properly brought
before the annual meeting by a stockholder of record who complies with the
notice procedures set forth below. In addition to any other applicable
requirements, for business (including the nomination of a person or persons for
election to the Board of Directors) to be properly brought before any annual
meeting by a stockholder, the stockholder must have given timely notice thereof,
in proper form, to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than sixty (60) nor more
than ninety (90) days prior to the anniversary date of the immediately preceding
annual meeting; PROVIDED, HOWEVER, that in the event the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the date on which notice of the date of the annual meeting was mailed or
otherwise made public. To be in proper form, a stock-holder's notice to the
Secretary must be in writing and must set forth with respect to each matter the
stockholder proposes to bring before the annual meeting (a) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (b) the name and record
address of the stockholder proposing such business, (c) the class or series and
number of shares of the capital stock of the Corporation that are owned
beneficially or of record by the stockholder, (d) as to each person whom the
stockholder proposes to nominate for election to the Board of Directors, (i) the
name, age, business address and residence address of the person, (ii) the
principal occupation or employment of the person and (iii) the class or series
and number of shares of capital stock of the Corporation that are owned
beneficially or of record by the person, (e) a description of all arrangements
or understandings between such stockholder and any other person or persons
(including their name(s)) in connection with the proposal of such business (or
the nomination of any person or persons for election to the Board of Directors)
by any stockholder and any material interest of such stockholder in such
business (or nomination), (f) any other information that would be required to be
disclosed in a proxy statement or other filing required to be made in connection
with the solicitation of proxies for the proposal (or the election of a person
or persons to the Board of Directors) pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder if such
stockholder were engaged in such a solicitation and (g) a representation that
such stockholder or a representative thereof intends to appear in person at the
annual meeting to bring such business before the meeting (or nominate a person
or persons for election to the Board of Directors). Any such notice relating to
the nomination of a person or persons for election to the Board of Directors
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
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The Chairman of the annual meeting shall, if the facts warrant, determine
and declare to the meeting that business was not properly brought before the
meeting in accordance with the provisions of this Section 4 and any such
business not properly brought before the meeting shall not be transacted at the
meeting.
5. SPECIAL MEETINGS. Special meetings of the stockholders may be called at
any time and for any purpose or purposes by the Board of Directors, the Chairman
of the Board, the Chief Executive Officer or by a committee of the Board of
Directors which has been duly designated by the Board of Directors and whose
powers and authority, as provided in a resolution of the Board of Directors or
in these Bylaws, include the power to call such meetings. If and to the extent
that any special meeting of stockholders may be called by any other person or
persons specified in any provision of the Certificate of Incorporation or any
amendment thereto, or any certificate filed under Section 151(g) of the General
Corporation Law of the State of Delaware (the "GCL") designating the number of
shares of Preferred Stock to be issued and the rights, preferences, privileges
and restrictions granted to and imposed on the holders of such designated
Preferred Stock, then such special meeting may also be called by such person or
persons in the manner, at the times and for the purposes so specified. Except in
special cases where other express provision is made by statute, notice of such
special meeting shall be given in the same manner as for an annual meeting of
stockholders. Such notice shall also specify the general nature of the business
to be transacted at the meeting, and no business shall be transacted at the
special meeting except as specified in such notice (or any supplement thereto).
6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any stockholders' meeting,
annual or special, whether or not a quorum is present, may be adjourned from
time to time by the chairman of such meeting or by the vote of a majority of the
shares present in person or represented by proxy at such meeting, but in the
absence of a quorum no other business may be transacted at such meeting.
Notice of an adjourned meeting need not be given if (a) the meeting is
adjourned for thirty (30) days or less, (b) the time and place of the adjourned
meeting are announced at the meeting at which the adjournment is taken, and (c)
no new record date is fixed for the adjourned meeting. Otherwise, notice of the
adjourned meeting shall be given as if the adjourned meeting were a new meeting.
7. VOTING. Except as otherwise provided by applicable law, the Certificate
of Incorporation or these Bylaws, a stockholder shall be entitled to one vote
for each share held of record on the record date fixed for the determination of
the stockholders entitled to notice of and to vote at a meeting or, if no such
date is fixed, the date determined in accordance with applicable law. If any
share is entitled to more or less than one vote on
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any matter, all references herein to a majority or other proportion of shares
shall refer to a majority or other proportion of the voting power of shares
entitled to vote on such matter.
8. QUORUM. A majority of the outstanding shares entitled to vote,
represented in person or by proxy, shall constitute a quorum for the transaction
of business. No business may be transacted at a meeting in the absence of a
quorum other than the adjournment of such meeting, except that if a quorum is
present at the commencement of a meeting, business may be transacted until the
meeting is adjourned even though the withdrawal of stockholders results in less
than a quorum being present in person or by proxy at such meeting. If a quorum
is present at a meeting, the affirmative vote of a majority of the shares
present or represented by proxy at the meeting and entitled to vote on any
matter shall be the act of the stockholders unless the vote of a larger number
is required by applicable law, the Certificate of Incorporation or these Bylaws.
If a quorum is present at the commencement of a meeting but the withdrawal of
stockholders results in less than a quorum being present in person or by proxy
at such meeting, the affirmative vote of a majority of the shares required to
constitute a quorum shall be the act of the stockholders unless the vote of a
larger number is required by applicable law, the Certificate of Incorporation or
these Bylaws.
9. PROXIES. A stockholder may be represented at any meeting of
stockholders by a written proxy signed by the person entitled to vote or by such
person's duly authorized attorney-in-fact. A proxy must bear a date within three
(3) years prior to the meeting, unless the proxy specifies a different length of
time. A revocable proxy is revoked by a writing delivered to the Secretary of
the Corporation stating that the proxy is revoked or by a subsequent proxy
executed by, or by attendance at the meeting and voting in person by, the person
executing the proxy.
10. CHAIRMAN AND SECRETARY AT MEETINGS. At any meeting of
stockholders, the Chairman of the Board of Directors, or in his absence, a
person designated by the Board of Directors, shall preside at and act as
chairman of the meeting. The Secretary, or in his absence a person
designated by the chairman of the meeting, shall act as secretary of the
meeting.
11. INSPECTORS. The Board of Directors may, in advance of any meeting of
stockholders, appoint one or more inspectors to act at such meeting or any
adjournment thereof. Each inspector, before entering upon the discharge of his
duties, shall take and sign an oath to faithfully execute the duties of
inspector. The inspector(s) shall determine the number of shares of capital
stock of the Corporation outstanding and the voting power of each, the number of
shares present or represented by proxy at the meeting, the existence of a
quorum, the validity and effect of proxies, and shall receive votes, ballots or
consents, count and tabulate all votes, ballots or consents, determine the
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results of any election or vote, and do such acts as are proper to conduct the
election or vote with fairness to all stockholders. At the request of the
chairman of the meeting, the inspectors shall make a written report of any
matters determined by them. No director or candidate for the office of director
shall act as an inspector of an election of directors.
12. LIST OF STOCKHOLDERS. The Secretary of the Corporation shall prepare
and make, at least ten (10) days before every meeting of the 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 (10) 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.
DIRECTORS
13. POWERS. Subject to any limitations contained in the Certificate of
Incorporation, these Bylaws or the GCL as to actions to be authorized or
approved by the stockholders, and subject to the duties of directors as
prescribed by these Bylaws, all corporate powers shall be exercised by or under
the ultimate direction of, and the business and affairs of the Corporation shall
be managed by, or under the ultimate direction of, the Board of Directors.
14. CERTAIN DEFINITIONS. For purposes of these Bylaws:
"ADDITIONAL SHARES" means, as of any date of determination, up to 255,381
shares of the Corporation's Common Stock (as equitably adjusted to reflect any
stock split, combination, reorganization, recapitalization, reclassification or
other similar event involving the Corporation's Common Stock), in the aggregate,
(i) the Beneficial Ownership of which may be acquired inadvertently from time to
time by The Goldman Sachs Group, Inc. or its Affiliates acting in connection
with their activities as a broker or dealer registered under Section 15 of the
Exchange Act or as an asset manager (excluding Affiliates formed for the purpose
of effecting principal transactions) or (ii) the Beneficial Ownership of which
may be acquired by the Investors pursuant to grants of stock options or other
stock-based awards to the Investors' Directors by the Corporation pursuant to
any stock option or stock incentive plan approved by the Board of Directors of
the Corporation, including without limitation the Hexcel Incentive Stock Plan;
provided, that if and for so long as The Goldman Sachs Group, Inc. and its
Affiliates collectively Beneficially Own less than 30% of the Total Voting Power
of the
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Corporation, the maximum number of Additional Shares shall be 400,000 (as
equitably adjusted to reflect any stock split, combination, reorganization,
recapitalization, reclassification or other similar event involving the
Corporation's Common Stock).
An "AFFILIATE" of any Person means any other Person that directly or
indirectly, through one or more intermediaries, Controls, is Controlled by, or
is under common Control with, such first Person. "CONTROL" has the meaning
specified in Rule 12b-2 under the Exchange Act as in effect on the date of this
Agreement.
Any person shall be deemed to "BENEFICIALLY OWN", to have "BENEFICIAL
OWNERSHIP" of, or to be "BENEFICIALLY OWNING" any securities (which securities
shall also be deemed "BENEFICIALLY OWNED" by such person) that such person is
deemed to "beneficially own" within the meaning of Rule 13d-3 and 13d-5 under
the Securities Exchange Act of 1934, as amended, as in effect on December 19,
2000; provided that, except for the rights set forth in Section 3.02 of the
Governance Agreement, any Person shall be deemed to Beneficially Own any
securities that such Person has the right to acquire, whether or not such right
is exercisable immediately.
"BUYOUT TRANSACTION" means a tender offer, merger, sale of all or
substantially all the Corporation's assets or any similar transaction that
offers holders of Voting Securities (other than, if applicable, the Person
proposing such transaction) the opportunity to dispose of Voting Securities
Beneficially Owned by such holders or otherwise contemplates the acquisition by
any Person or Group of Voting Securities that would result in Beneficial
Ownership by such Person or Group of a majority of the Voting Securities
outstanding, or a sale of all or substantially all of the Corporation's assets.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"GOVERNANCE AGREEMENT" means the Governance Agreement dated as of
December 19, 2000 among LXH, L.L.C., LXH II, L.L.C., the Corporation and the
other parties listed on the signature pages thereto (the "Limited
Partnerships").
"GROUP" has the meaning set forth in Section 13(d) of the Exchange Act as
in effect on the date of this Agreement.
"GS CAPITAL" means GS Capital Partners 2000, L.P., a Delaware limited
partnership.
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"HEXCEL INCENTIVE STOCK PLAN" means the Hexcel Corporation Incentive Stock
Plan, as amended and restated as of February 3, 2000 and any subsequent
amendment thereto approved by the Board of Directors of the Corporation.
"INDEPENDENT DIRECTOR" means a director of the Corporation who is not an
Investors' Director and who (i) is not and has never been an officer, employee
or director of any of the Investors or their Affiliates or associates (as
defined in Rule 12b-2 under the Exchange Act), in each case other than the
Corporation, and (ii) has no affiliation or compensation, consulting or
contractual relationship with any of the Investors or their Affiliates or
associates (in each case other than the Corporation) such that a reasonable
person would regard such director as likely to be unduly influenced by any of
such Persons or any of their Affiliates or associates (in each case other than
the Corporation).
"INITIAL INVESTORS' SHARES" means the 14,525,000 shares of the
Corporation's Common Stock initially purchased by the Investors pursuant to the
Stock Purchase Agreement, dated October 10, 2000, among Ciba Specialty Chemicals
Holding Inc., Ciba Specialty Chemicals Inc., and the Investors (as equitably
adjusted to reflect any stock split, combination, reorganization,
recapitalization, reclassification or other similar event involving the Initial
Investors' shares).
"INVESTORS" means (i) LXH, L.L.C., a Delaware limited liability company,
(ii) LXH II, L.L.C., a Delaware limited liability company, (iii) each of the
Limited Partnerships, (iv) The Goldman Sachs Group, Inc., or any direct or
indirect Subsidiary of The Goldman Sachs Group, Inc. formed for the purpose of
effecting principal transactions, and (v) subject to the approval of a majority
of the Independent Directors, one other Person designated within 90 days
following the Closing Date by LXH, L.L.C. or LXH II, L.L.C. as a proposed
transferee of up to 2,200,000 shares of the Corporation's Common Stock;
provided, that any of the foregoing Persons shall be an Investor only for so
long as it Beneficially Owns Voting Securities subject to the provisions of the
Governance Agreement or is a transferee of Voting Securities pursuant to Section
4.01(a)(i) of the Governance Agreement; provided, further, that any such Person
specified in clause (iv) or (v) that acquires Voting Securities in accordance
with the Governance Agreement has executed a joinder in which it shall agree to
be bound by the provisions of the Governance Agreement to the same extent as the
Investors.
"INVESTORS' DIRECTORS" means Investors' Nominees who are elected or
appointed to serve as members of the Board of Directors.
"INVESTORS' NOMINEES" means such persons as are so designated by GS
Capital or LXH II, L.L.C., as such designations may change from time to time, to
serve as members of the Board of Directors pursuant to Sections 17 and 18.
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"ORDINARY COURSE BROKER DEALER SHARES" means those shares of the
Corporation's Common Stock which are acquired by any Person solely in connection
with the activities of a broker or dealer registered under Section 15 of the
Exchange Act (i) as a result of underwriting activities in connection with a
registration statement filed by Hexcel (including any shares acquired for the
investment account of a broker or dealer in connection with such underwriting
activities), (ii) as a result of the exercise of investment or voting discretion
authority with respect to any of such Person's customer accounts, or (iii) in
good faith in connection with a debt previously contracted; provided, in each
case, that the Person engaging in such activities does not Beneficially Own such
shares of the Corporation's Common Stock.
"PERSON" or "PERSON" means any individual, group, corporation,
partnership, joint venture, trust, business association, organization,
governmental entity or other entity.
"SUBSIDIARY" means, with respect to any Person, as of any date of
determination, any other Person as to which such Person owns, directly or
indirectly, or otherwise controls, more than 50% of the voting shares or other
similar interests.
"SIGNIFICANT SUBSIDIARY" has the meaning set forth in Rule 1-02 of
Regulation S-X under the Securities Act of 1933, as amended, as in effect on
December 19, 2000.
"TOTAL VOTING POWER OF THE CORPORATION" means the total number of votes
that may be cast in the election of directors of the Corporation if all Voting
Securities outstanding or treated as outstanding pursuant to the final sentence
of this definition were present and voted at a meeting held for such purpose.
The percentage of the Total Voting Power of the Corporation Beneficially Owned
by any Person is the percentage of the Total Voting Power of the Corporation
that is represented by the total number of votes that may be cast in the
election of directors of the Corporation by Voting Securities Beneficially Owned
by such Person. In calculating such percentage, the Voting Securities
Beneficially Owned by any Person that are not outstanding but are subject to
issuance upon exercise or exchange of rights of conversion or any options,
warrants or other rights Beneficially Owned by such Person shall be deemed to be
outstanding for the purpose of computing the percentage of the Total Voting
Power represented by Voting Securities Beneficially Owned by such Person, but
shall not be deemed to be outstanding for the purpose of computing the
percentage of the Total Voting Power represented by Voting Securities
Beneficially Owned by any other Person.
"VOTING SECURITIES" means the Common Stock of the Corporation and any
other securities of the Corporation or any subsidiary of the Corporation
entitled to vote
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generally in the election of directors of the Corporation or such subsidiary of
the Corporation.
15. NUMBER OF DIRECTORS.
(a) Except as provided in Subsection 6.1 of the Certificate of
Incorporation and subject to compliance with Section 17, the authorized number
of directors of this Corporation shall be not less than three (3) nor more than
fifteen (15), with the exact number of directors within such range specified in
subsection (b) below, or, if not so specified, with the exact number of
directors within such range fixed from time to time by resolution of the Board
of Directors.
(b) It is hereby specified that this Corporation shall have ten (10)
directors, one of whom shall be designated the Chairman of the Board. The
Chairman of the Board shall be designated by a majority of the members of the
Board of Directors.
16. ELECTION.
(a) Directors shall hold office until the annual meeting next following
their election and until their successors are nominated, elected and qualified
pursuant to these Bylaws; subject, however, to their prior resignation, death or
removal as provided by the Certificate of Incorporation, these Bylaws or
applicable law.
Subject to the Certificate of Incorporation and Subsections (b), (c), (d)
and (e) hereof, any vacancies in the Board of Directors for any reason, and any
newly created directorships resulting from any increase in the number of
directors, may be filled by the Board of Directors, acting by a majority of the
directors then in office, even if less than a quorum; and any directors so
chosen shall hold office until the next election of the class for which such
directors shall have been chosen, and until their successors shall be elected
and qualified or until their earlier death, resignation or removal.
(b) If at any time a member of the Board dies, resigns or is removed, a
new member shall be designated to replace such member until the next election of
directors. If, consistent with Section 17, the replacement director is to be an
Investors' Director, the Investors shall designate the replacement Investors'
Director. Except as set forth in paragraph (d) below, if consistent with Section
17, the replacement director is to be an Independent Director, the remaining
Independent Directors shall designate the replacement Independent Director.
(c) Subject to paragraph (d) below, if at any time the number of
Investors' Nominees entitled to be nominated to the Board of Directors in
accordance with these
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Bylaws in an election of directors presented to stockholders decreases, within
10 days thereafter the Investors shall cause a sufficient number of Investors'
Directors to resign from the Board of Directors so that the number of Investors'
Directors on the Board of Directors after such resignation(s) equals the number
of Investors' Nominees that GS Capital and the Investors would have been
entitled to designate had an election of directors taken place at such time. GS
Capital and the Investors shall also cause a sufficient number of Investors'
Directors to resign from any relevant committees of the Board of Directors so
that such committees are comprised in the manner contemplated by Section 19
after giving effect to such resignations. Any vacancies created by the
resignations required by this Subsection (c) shall be filled by Independent
Directors.
(d) If at any time the percentage of the Total Voting Power of the
Corporation Beneficially Owned by the Investors decreases as a result of an
issuance of Voting Securities by the Corporation (other than any of the
issuances described in the last sentence of this Section 16(d)), the Investors
may notify the Corporation that the Investors intend to acquire a sufficient
amount of additional Voting Securities necessary to maintain its then current
level of Board of Directors representation within 90 days. In such event, until
the end of such period (and thereafter if the Investors in fact restore their
percentage of the Total Voting Power of the Corporation during such period and
provided that the Investors continue to maintain the requisite level of
Beneficial Ownership of Voting Securities in accordance with Section 17) the
Board of Directors shall continue to have the number of Investors' Directors
that corresponds to the percentage of the Total Voting Power of the Corporation
Beneficially Owned by the Investors prior to such issuance of Voting Securities
by the Corporation. Notwithstanding any provision in the Governance Agreement to
the contrary, the provisions of this Section 16(d) shall not apply to any
issuance of Voting Securities (x) in connection with the registered public
offering of up to 6,900,000 shares of the Corporation's Common Stock permitted
by Section 20(c), (y) upon conversion of any convertible securities which are
either outstanding on the date hereof or approved by the Board or a duly
authorized committee of the Board after the date hereof in accordance with
Section 2.06 of the Governance Agreement, or (z) pursuant to employee or
director stock option or incentive compensation or similar plans outstanding as
of the date hereof or, subsequent to the date hereof, approved by the Board or a
duly authorized committee of the Board.
(e) Whenever the holders of any one or more classes or series of Preferred
Stock issued by the Corporation shall have the right, voting separately by class
or series, to elect directors at any annual or special meeting of stockholders,
the election, term of office, filling of vacancies, removal and other features
of such directorships shall be governed by the terms of the Certificate of
Incorporation applicable thereto, and by the terms of any certificate filed
pursuant to Section 151(g) of the GCL designating such
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class or series and the rights, preferences, privileges and restrictions granted
to and imposed on the holders of such designated Preferred Stock.
17. INVESTORS BOARD REPRESENTATION.
(a) For so long as the Investors Beneficially Own 20% or more of the Total
Voting Power of the Corporation, subject to Section 2.02(d), the Corporation
shall exercise all authority under applicable law to cause any slate of
directors presented to stockholders for election to the Board of Directors to
consist of such nominees that, if elected, would result in the entire Board of
Directors consisting of three Investors' Directors and seven Independent
Directors; PROVIDED, HOWEVER, that if the Investors, directly or indirectly,
shall have sold, transferred or otherwise disposed of, on a cumulative basis,
Beneficial Ownership of such number of shares of the Corporation's Common Stock
representing 33a% or more of the Initial Investors' Shares to Persons who are
not Investors, then the Corporation shall exercise all authority under
applicable law to cause any slate of directors presented to stockholders for
election to the Board of Directors to consist of such nominees that, if elected,
would result in the entire Board of Directors consisting of two Investors'
Directors and eight Independent Directors.
(b) For so long as the Investors Beneficially Own less than 20% but at
least 15% of the Total Voting Power of the Corporation, subject to Section
17(d), the Corporation shall exercise all authority under applicable law to
cause any slate of directors presented to stockholders for election to the Board
of Directors to consist of such nominees that, if elected, would result in the
entire Board of Directors consisting of two Investors' Directors and eight
Independent Directors; PROVIDED, HOWEVER, that if the Investors, directly or
indirectly, shall have sold, transferred or otherwise disposed of, on a
cumulative basis, Beneficial Ownership of such number of shares representing
66b% or more of the Initial Investors' Shares, then the Corporation shall
exercise all authority under applicable law to cause any slate of directors
presented to stockholders for election to the Board of Directors to consist of
such nominees that, if elected, would result in the entire Board of Directors
consisting of one Investors' Director and nine Independent Directors.
(c) For so long as the Investors Beneficially Own less than 15% but at
least 10% of the Total Voting Power of the Corporation, subject to Section
17(d), the Corporation shall exercise all authority under applicable law to
cause any slate of directors presented to stockholders for election to the Board
of Directors to consist of such nominees that, if elected, would result in the
entire Board of Directors consisting of one Investors' Director and nine
Independent Directors.
(d) In order to determine (x) the number of Investors' Nominees to be
included in any slate of directors to be presented to stockholders for election
to the
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Board of Directors and (y) the percentage of the Total Voting Power of the
Corporation Beneficially Owned by the Investors for purposes of Section 20, the
Investors shall be deemed to Beneficially Own a percentage of the Total Voting
Power of the Corporation that is no more than (1) 39.3% of the Total Voting
Power of the Corporation less (2) the percentage of the Total Voting Power of
the Corporation represented by any Voting Securities disposed of, directly or
indirectly, by the Investors since December 19, 2000.
(e) The Additional Shares shall not be included in any calculation of the
Investors' Beneficial Ownership of the Total Voting Power of the Corporation
under these Bylaws.
18. DESIGNATION OF SLATE. Any Investors' Nominees that are included in a
slate of directors pursuant to Section 17 shall be designated by the Investors,
and any Independent Director nominees who are to be included in any slate of
directors pursuant to Section 17 shall be designated by majority vote of the
then incumbent Independent Directors. The Corporation's nominating committee, if
any (or if there is no such nominating committee, the Board or any other duly
authorized committee thereof) shall nominate each person so designated.
19. COMMITTEE MEMBERSHIP. Subject to applicable law, rules and regulations
(including those of applicable self-regulatory organizations), so long as the
Investors shall be entitled to designate two or more Investors' Directors for
election to the Board of Directors, each committee of the Board of Directors,
including the finance, audit, nominating, and compensation committees, shall
include at least one Investors' Director.
20. APPROVALS. The Board of Directors shall not authorize, approve or
ratify any of the following actions without the approval of a majority of the
Investors' Directors for so long as (subject to the provisions of Section 17(d))
the Investors Beneficially Own 15% or more of the Total Voting Power of the
Corporation and, if the Investors' collective percentage Beneficial Ownership of
the Total Voting Power of the Corporation is reduced below 15% as so determined
by an issuance of Voting Securities by the Corporation, until (x) 10 business
days after the Corporation notifies the Investors in writing of such issuance,
and (y) if the Investors shall have notified the Corporation within 10 business
days after their receipt of a written notification of such issuance that the
Investors, pursuant to the option granted to the Investors by Section 3.02 of
the Governance Agreement, intend to acquire a sufficient amount of Voting
Securities within such 90-day period referred to therein, so that the Investors
will collectively Beneficially Own at least 15% of the Total Voting Power of the
Corporation determined in accordance with Section 17(d) by the end of such
90-day period, during the 90-day period following an issuance of Voting
Securities by the Corporation that
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causes the Investors to collectively Beneficially Own less than 15% of the Total
Voting Power of the Corporation as so determined:
(a) any merger, consolidation, acquisition or other business combination
involving the Corporation or any Subsidiary of the Corporation (other than a
Buyout Transaction) if the value of the consideration to be paid or received by
the Corporation and/or its stockholders in any such individual transaction or in
such transaction when added to the aggregate value of the consideration paid or
received by the Corporation in all other such transactions approved by the Board
of Directors during the immediately preceding 12 months exceeds the greater of
(x) $150 million or (y) 11% of the Corporation's total consolidated assets;
(b) any Buyout Transaction; PROVIDED, HOWEVER, that the Investors' rights
pursuant to this clause (b) shall apply only for the 18-month period following
December 19, 2000;
(c) any sale, transfer, assignment, conveyance, lease or other disposition
or any series of related dispositions of any assets, business or operations of
the Corporation or any of its Subsidiaries (other than a Buyout Transaction) if
the value of the assets, business or operations so disposed during the
immediately preceding 12 months exceeds the greater of (x) $150 million or (y)
11% of the Corporation's total consolidated assets;
(d) any issuance by the Corporation or any Significant Subsidiary of the
Corporation of equity or equity-related securities other than (i) pursuant to
customary employee or director stock option or incentive compensation or similar
plans approved by the Board of Directors or a duly authorized committee of the
Board of Directors, (ii) pursuant to transactions solely among the Corporation
and its wholly owned Subsidiaries (including any Subsidiaries which would be
wholly owned by the Corporation but for the issuance of directors' or
shareholders' qualifying shares), (iii) upon conversion of convertible
securities or upon exercise of warrants or options, which convertible
securities, warrants or options are either outstanding on December 19, 2000 or
approved by the Board or a duly authorized committee of the Board after December
19, 2000 in accordance with Section 2.06 of the Governance Agreement, or (iv) in
connection with any mergers, consolidations, acquisitions or other business
combinations involving the Corporation or any Subsidiary of the Corporation
which are approved by the Board or a duly authorized committee of the Board in
accordance with Section 2.06 of the Governance Agreement (if applicable) and for
which the consideration received by the Corporation for such transactions during
the immediately preceding 12 months exceeds the greater of (x) $150 million or
(y) 11% of the Corporation's total consolidated assets; PROVIDED, HOWEVER, that
during the 12 month period following December 19, 2000, neither the Corporation
nor any Subsidiary of the Corporation may issue shares of Common Stock in a
registered public offering under
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the Securities Act in a private placement or otherwise without the approval of a
majority of the Investors' Directors unless the aggregate number of shares
issued during this 12 month period does not exceed 6,900,000 and the offering
price of such shares is unanimously approved by a pricing committee of the Board
of Directors, such committee consisting solely of one Investors' Director and
two Independent Directors (selected by the Independent Directors).
21. NONEXCLUSIVITY. The Investor's rights under Sections 14, 15, 16, 17,
18, 19, and 20 shall not be deemed exclusive of any rights related to similar
matters to which the Investors may be entitled under these Bylaws, the
Certificate of Incorporation, any agreement (including the Governance Agreement)
or otherwise.
22. QUORUM AND REQUIRED VOTE. A majority of the directors then in office
shall constitute a quorum for the transaction of business, provided that unless
the authorized number of directors is one, the number constituting a quorum
shall not be less than the greater of one-third of the authorized number of
directors or two directors. Except as otherwise provided by the Certificate of
Incorporation or these Bylaws, every act or decision done or made by a majority
of the directors present at a meeting duly held at which a quorum is present is
the act of the Board of Directors. A meeting at which a quorum is initially
present may continue to transact business notwithstanding the withdrawal of
directors, if any action taken is approved by at least a majority of the
required quorum for such meeting. A majority of the directors present at a
meeting, whether or not a quorum is present, may adjourn the meeting to another
time and place.
23. REMOVAL. Except as provided in the Certificate of Incorporation and in
Section 16 hereof, a director may be removed from office at any time, with or
without cause, by the affirmative vote of the holders of a majority of the
outstanding shares entitled to vote at an election of directors. No reduction in
the number of directors shall have the effect of removing any director prior to
the expiration of his term.
24. RESIGNATION. Any director may resign by giving written notice to
the Chairman of the Board, the Chief Executive Officer, the Secretary or the
Board of Directors. Such resignation shall be effective when given unless
the notice specifies a later time. The resignation shall be effective
regardless of whether it is accepted by the Corporation.
25. COMPENSATION. If the Board of Directors so resolves, the directors,
including the Chairman of the Board, shall receive compensation and expenses of
attendance at meetings of the Board of Directors and committees of the Board of
Directors. Nothing herein shall preclude any director from serving the
Corporation in another capacity and receiving compensation for such service.
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26. COMMITTEES. Subject to Section 19, the Board of Directors may, by
resolution adopted by a majority of the authorized number of directors,
designate one or more committees, each consisting of two or more directors, to
serve at the pleasure of the Board of Directors. In the absence or
disqualification of any member of a committee of the Board of Directors, the
other members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may, subject to Section 19,
unanimously appoint another member of the Board of Directors to act in the place
of such absent or disqualified member. The Board of Directors may, subject to
Section 19, designate one or more directors as alternate members of a committee
who may replace any absent member at any meeting of the committee. To the extent
permitted by resolution of the Board of Directors, a committee may exercise all
of the authority of the Board of Directors to the extent permitted by Section
141(c) of the GCL.
27. TIME AND PLACE OF MEETINGS AND TELEPHONE MEETINGS. Immediately
following each annual meeting of stockholders (or at such other time and place
as may be determined by the Board of Directors), the Board of Directors shall
hold a regular meeting for purposes of organizing the Board of Directors,
electing officers, appointing committees and transacting other business. The
Board of Directors may establish by resolution the times, if any, that other
regular meetings of the Board of Directors shall be held. All meetings of
directors shall be held at the principal executive office of the Corporation or
at such other place, whether within or without the State of Delaware, as shall
be designated in the notice for the meeting or in a resolution of the Board of
Directors. Directors may participate in a meeting through use of conference
telephone or similar communications equipment, so long as all directors
participating in such meeting can hear each other.
28. CALL. Meetings of the Board of Directors, whether regular or
special, may be called by the Chairman of the Board, the Chief Executive
Officer, the Secretary or any two directors.
29. NOTICE. Regular meetings of the Board of Directors may be held without
notice if the date and time of such meetings have been fixed by the Board of
Directors. Special meetings shall be held upon four days' notice by mail, 24
hours notice delivered personally or by telephone, telegraph or confirmed fax or
on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate under the circumstances. Regular meetings shall be held
upon similar notice if notice is required for such meetings. Neither a notice
nor a waiver of notice need specify the purpose of any regular or special
meeting. Notice sent by mail, telegram or fax shall be addressed to a director
at his business or home address/fax number as shown upon the records of the
Corporation, or at such other address/fax number as the director specifies in
writing delivered to the Corporation, or if such an address/fax number is not so
shown on such
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records and no written instructions have been received from the director, at the
place at which meetings of directors are regularly held. Such mailing,
telegraphing, delivery or transmittal, as above provided, shall be due, legal
and personal notice to such director. If a meeting is adjourned for more than 24
hours, notice of the adjourned meeting shall be given prior to the time of such
meeting to the directors who were not present at the time of the adjournment.
30. MEETING WITHOUT REGULAR CALL AND NOTICE. The transaction of business
at any meeting of the Board of Directors, however called and noticed or wherever
held, is as valid as though transacted at a meeting duly held after regular call
and notice if a quorum is present and if, either before or after the meeting,
each of the directors not present signs a written waiver of notice, a consent to
holding the meeting or an approval of the minutes of the meeting. For such
purposes, a director shall not be considered present at a meeting if, although
in attendance at the meeting, the director protests the lack of notice prior to
the meeting or at its commencement.
31. ACTION WITHOUT MEETING. Any action required or permitted to be taken
by the Board of Directors may be taken without a meeting, if all of the members
of the Board of Directors individually or collectively consent in writing to
such action. In addition, all directors (including those who are not members of
a particular committee) shall receive notice of, and shall be entitled to
attend, all meetings of any committee of the Board of Directors. Only those
directors who are members of a particular committee shall be entitled to vote at
meetings thereof.
32. COMMITTEE MEETINGS. The principles set forth in Sections 27
through 31 of these Bylaws shall also apply to committees of the Board of
Directors and to actions taken by such committees.
33. HONORARY ADVISORS TO THE BOARD. The Board of Directors may appoint one
or more Honorary Advisors, who shall hold such position for such period, shall
have such authority and perform such duties as the Board of Directors may
specify, subject to change at any time by the Board of Directors. An Honorary
Advisor to the Board of Directors shall not be a director for any purpose or
with respect to any provision of the Certificate of Incorporation, these Bylaws
or of the GCL, and shall have no vote as a director. However, an Honorary
Advisor to the Board of Directors may receive such compensation and expense
reimbursement as the Board of Directors shall from time to time determine.
OFFICERS
34. TITLES AND RELATION TO BOARD OF DIRECTORS. The officers of the
Corporation shall include a Chief Executive Officer, a President and a
Secretary. The
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Board of Directors may also choose a Chairman of the Board, one or more Vice
Chairmen of the Board, a Chief Operating Officer, a Chief Financial Officer, a
General Counsel, a Treasurer, and one or more Vice Presidents (who may be
designated Executive or Senior Vice Presidents), Assistant Secretaries,
Assistant Treasurers or other officers. All officers shall perform their duties
and exercise their powers subject to the direction of the Chief Executive
Officer and the overriding direction of the Board of Directors. If there shall
occur a vacancy in any office, in the absence of the appointment of a
replacement by the Board of Directors, the Chief Executive Officer shall have
the right and power to appoint a Secretary, a Treasurer, a Chief Operating
Officer, a Chief Financial Officer, a General Counsel, one or more additional
Vice Presidents (who may be designated Executive or Senior Vice Presidents), one
or more Assistant Secretaries and one or more Assistant Treasurers, all of whom
shall serve at the pleasure of the Board of Directors, and shall perform their
duties and exercise their powers subject to the direction of the Chief Executive
Officer and the overriding direction of the Board of Directors. Any number of
offices may be held simultaneously by the same person.
35. ELECTION, TERM OF OFFICE AND VACANCIES. At its regular annual meeting,
the Board of Directors shall choose the officers of the Corporation. The
officers shall hold office until their successors are chosen, except that the
Board of Directors may remove any officer at any time. Subject to Section 34 of
these Bylaws, if an office becomes vacant for any reason, the vacancy shall be
filled by the Board of Directors.
36. RESIGNATION. Any officer may resign at any time upon written notice to
the Corporation without prejudice to the rights, if any, of the Corporation
under any contract to which the officer is a party. Such resignation shall be
effective when given unless the notice specifies a later time. The resignation
shall be effective regardless of whether it is accepted by the Corporation.
37. COMPENSATION. The Board of Directors shall fix the compensation of the
Chairman of the Board, any Vice Chairman, the Chief Executive Officer and the
President and may fix the salaries of other employees of the Corporation
including the other officers. If the Board of Directors does not fix the
salaries of the other officers, the Chief Executive Officer shall fix such
salaries.
38. CHAIRMAN OF THE BOARD. The Chairman of the Board shall, if present,
preside at all meetings of the Board of Directors, and exercise and perform such
other powers and duties as may be from time to time assigned to him by the Board
of Directors or prescribed by these Bylaws.
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39. CHIEF EXECUTIVE OFFICER. Unless otherwise determined by the Board of
Directors, the Chief Executive Officer shall be deemed general manager of the
Corporation. The Chief Executive Officer shall effectuate orders and resolutions
of the Board of Directors and exercise such other powers and perform such other
duties as the Board of Directors shall from time to time prescribe.
40. PRESIDENT AND VICE PRESIDENTS. Unless otherwise determined by the
Board of Directors, in the absence or disability of the Chief Executive Officer,
the President, and in the absence or disability of the President, the Vice
President (who may be designated Executive or Senior Vice President), if any, or
if more than one, the Vice Presidents (who may be designated Executive or Senior
Vice Presidents) in order of their rank as fixed by the Board of Directors or,
if not so ranked, the Vice President (who may be designated Executive or Senior
Vice President) designated by the Board of Directors, shall perform all the
duties of the Chief Executive Officer, and when so acting shall have all the
powers of, and be subject to all the restrictions upon, the Chief Executive
Officer. The President and Vice Presidents (who may be designated Executive or
Senior Vice Presidents) shall have such other powers and perform such other
duties as from time to time may be prescribed for them by the Board of Directors
or these Bylaws.
41. SECRETARY. The Secretary (or in his absence an Assistant
Secretary or, if there be no Assistant Secretaries, another person designated
by the Board of Directors) shall have the following powers and duties:
(a) RECORD OF CORPORATE PROCEEDINGS. The Secretary shall attend all
meetings of the Board of Directors and its committees and shall record all votes
and the minutes of such meetings in a book to be kept for that purpose at the
principal executive office of the Corporation or at such other place as the
Board of Directors may determine. The Secretary shall keep at the Corporation's
principal executive office the original or a copy of these Bylaws, as amended
from time to time.
(b) RECORD OF SHARES. Unless a transfer agent is appointed by the Board of
Directors to keep a share register, the Secretary shall keep at the principal
executive office of the Corporation a share register showing the names of the
stockholders and their addresses, the number and class of shares held by each,
the number and date of certificates issued, and the number and date of
cancellation of each certificate surrendered for cancellation.
(c) NOTICES. The Secretary shall give such notices as may be
required by law or these Bylaws.
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(d) ADDITIONAL POWERS AND DUTIES. The Secretary shall exercise such other
powers and perform such other duties as the Board of Directors or the Chief
Executive Officer shall from time to time prescribe.
42. TREASURER. Unless otherwise determined by the Board of Directors, the
Treasurer of the Corporation shall be its chief financial officer, and shall
have custody of the corporate funds and securities and shall keep adequate and
correct accounts of the Corporation's properties and business transactions. The
Treasurer shall disburse such funds of the Corporation as may be ordered by the
Board of Directors or by one or more persons authorized by the Board of
Directors, taking proper vouchers for such disbursements, and when requested
shall render to the Chief Executive Officer, the Board of Directors and, if
applicable, the Chief Financial Officer, an account of all transactions and the
financial condition of the Corporation and shall exercise such other powers and
perform such other duties as the Board of Directors, the Chief Executive Officer
or, if applicable, the Chief Financial Officer shall prescribe.
43. OTHER OFFICERS AND AGENTS. Such other officers and agents 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.
SHARES
44. CERTIFICATES. Every stockholder shall be entitled to have a
certificate or certificates certifying the number and class of shares of the
capital stock of the Corporation owned by him. All such certificates shall be
signed in the manner prescribed in the GCL. Any signature on such certificates
may be a facsimile signature. The Board of Directors shall have the power to
appoint one or more transfer agents and/or registrars for the transfer or
registration of certificates of stock of any class, and may require stock
certificates to be countersigned or registered by one or more of such transfer
agents and/or registrars.
45. TRANSFERS OF SHARES OF CAPITAL STOCK. Transfers of shares shall be
made only upon the transfer books of the Corporation, kept at the office of the
Corporation or transfer agents and/or registrars designated by the Board of
Directors. Before any new certificate is issued, the old certificate shall be
surrendered for cancellation.
46. STOCKHOLDERS OF RECORD. Only stockholders of record shall be entitled
to be treated by the Corporation as the holders in fact of the shares standing
in their respective names and the Corporation shall not be bound to recognize
any
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equitable or other claim to or interest in any share of any other person,
whether or not it shall have express or other notice thereof, except as
expressly provided by law.
47. LOST, STOLEN OR DESTROYED CERTIFICATES. The Corporation may cause a
new stock certificate to be issued in place of any certificate previously issued
by the Corporation alleged to have been lost, stolen or destroyed. The
Corporation may, at its discretion and as a condition precedent to such
issuance, require the owner of such certificate to deliver an affidavit stating
that such certificate was lost, stolen or destroyed, or to give the Corporation
a bond or other security sufficient to indemnify it against any claim that may
be made against it, including any expense or liability, on account of the
alleged loss, theft or destruction or the issuance of a new certificate.
48. STOCKHOLDERS RECORD DATE. In order that the Corporation may determine
the stockholders entitled to notice of and to vote at any meeting of
stockholders or any adjournment thereof, 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 be not more than sixty (60) days nor less than ten (10)
days before the date of such meeting. A determination of stockholders of record
entitled to notice of and 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, and shall fix a new record
date for such adjourned meeting if the adjourned meeting is to take place more
than thirty (30) days from the date set for the original meeting.
49. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation and the GCL, the Board of Directors may, out of funds legally
available therefor, declare dividends upon the stock of the Corporation. Before
the declaration of any dividend, the Board of Directors may set apart, out of
any funds of the Corporation available for dividends, such sum or sums as from
time to time in its discretion may be deemed proper for working capital or as a
reserve fund to meet contingencies or for such other purposes as shall be deemed
conducive to the interests of the Corporation.
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AMENDMENTS
50. ADOPTION OF AMENDMENTS. The Board of Directors is authorized and
empowered from time to time in its discretion to make, alter, amend or repeal
these Bylaws, except as such power may be restricted or limited by the GCL;
PROVIDED, HOWEVER, that the provisions set forth in Sections 14, 16(a)-(d), 17,
18, 19, 20 or this Section 50 shall not be amended or repealed unless the
Investors shall have consented thereto in writing. Notwithstanding the
foregoing, Sections 14, 16(b)-(d), 17, 18, 19, 20 and the proviso in the
preceding sentence of this Section 50 shall be automatically repealed and cease
to have any force or effect on the date upon which the Investors rights under
the Governance Agreement terminate pursuant to the terms of such agreement.
51. RECORD OF AMENDMENTS. Whenever an amendment or new bylaw is adopted,
it shall be copied in the book to be kept for that purpose at the principal
executive office of the Corporation or at such other place as the Board of
Directors may determine. If any bylaw is repealed, the fact of repeal with the
date of the meeting at which the repeal was enacted or written consent with
respect thereto was filed shall be stated in said book.
CORPORATE SEAL
52. FORM OF SEAL. The corporate seal shall be circular in form, and
shall have inscribed thereon the name of the Corporation, the date of its
incorporation and the word "Delaware".
MISCELLANEOUS
53. CHECKS, DRAFTS, ETC. All checks, drafts, or other orders for payment
of money, notes, or other evidences of indebtedness, issued in the name of or
payable by or to the Corporation, shall be signed or endorsed by the Chief
Executive Officer, the President, the Chief Financial Officer, the Treasurer or
such other person or persons as may from time to time be so authorized in
accordance with a resolution of the Board of Directors.
54. CONTRACTS, ETC.; HOW EXECUTED. Except as otherwise provided in these
Bylaws, the Chief Executive Officer, the President, any Vice President (who may
be designated Executive or Senior Vice President) or Treasurer, or such other
officer or officers as may from time to time be so authorized in accordance with
a resolution of the Board of Directors, shall have the power and authority to
sign and execute on behalf of the Corporation deeds, conveyances and contracts,
and any and all other documents requiring execution by the Corporation. The
Board of Directors may authorize any
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other officer or officers, or agent or agents, to enter into any contract or
execute any instrument in the name of and on behalf of the Corporation, and such
authority may be general or confined to specific instances.
55. REPRESENTATION OF SHARES OF OTHER CORPORATIONS. The Chief Executive
Officer, the President or any Vice President (who may be designated Executive or
Senior Vice President) or the Secretary or Assistant Secretary of the
Corporation are authorized to vote, represent, and exercise on behalf of the
Corporation all rights incident to any and all shares of any other corporation
or corporations standing in the name of the Corporation. The authority herein
granted to said officers to vote or represent on behalf of the Corporation any
and all shares held by the Corporation in any other corporation or corporations
may be exercised either by such officers in person or by any other person
authorized so to do by proxy or power of attorney duly executed by said
officers.
56. INSPECTION OF BYLAWS. The Corporation shall keep in its principal
office for the transaction of business the original or a copy of these Bylaws as
amended or otherwise altered to date, certified by the Secretary, which shall be
open to inspection by the stockholders at all reasonable times during office
hours.
57. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
58. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise requires,
the general provisions, rules and construction, and definitions contained in the
GCL shall govern the construction of these Bylaws. Without limiting the
generality of the foregoing, the masculine gender includes the feminine and
neuter, the singular number includes the plural and the plural number includes
the singular, and the term "person" includes a corporation or other entity or
organization as well as a natural person.
59. SEVERABILITY. If any provision of these Bylaws is determined to
be invalid, void, illegal or unenforceable, the remaining provisions of these
Bylaws shall continue to be valid and enforceable and shall in no way be
affected, impaired or invalidated thereby.
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