P & F INDUSTRIES, INC.
EXHIBIT 3.2
======================
AMENDED BY-LAWS
OF
P & F INDUSTRIES, INC.
ARTICLE I.
OFFICES
SECTION 1. PRINCIPAL OFFICE. The registered office of P&F Industries, Inc.
(the "corporation") shall be located in such place as may be provided from time
to time in the Certificate of Incorporation.
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 as the business of the corporation
may require.
ARTICLE II.
STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. The annual meeting of the stockholders of the
corporation shall be held at such place, within or without the State of
Delaware, on such date and at such time as may be determined by the board of
directors and as shall be designated in the notice of said meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the stockholders for any
purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be held at any place, within or without the
State of Delaware, and may be called by resolution of the board of directors, or
by the Chairman or the President.
SECTION 3. NOTICE AND PURPOSE OF MEETINGS. Written or printed notice of
the meeting stating the place, day and hour of the meeting and, in case of a
special meeting, stating the purpose or purposes for which the meeting is
called, shall be delivered not less than ten nor more than sixty days before the
date of the meeting, either personally or by mail, by or at the direction of the
Chairman or the President to each stockholder of record entitled to vote at such
meeting.
SECTION 4. QUORUM. The holders of a majority of the shares of capital
stock issued and outstanding and entitled to vote, represented in person or by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by statute or by the
Certificate of Incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders 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
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which might have been transacted at the meeting as originally notified.
SECTION 5. ORDER OF BUSINESS. At each meeting of the stockholders, the
Chairman of the Board, or, in the absence of the Chairman of the Board, the
President, shall act as chairman. The order of business at each meeting shall be
as determined by the chairman of the meeting. The chairman of the meeting shall
have the right and authority to prescribe such rules, regulations and procedures
and to do all such acts and things as are necessary or desirable for the proper
conduct of the meeting, including, without limitation, the establishment of
procedures for the maintenance of order and safety, limitations on the time
allotted to questions or comments on the affairs of the corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof, and the opening and closing of the voting polls.
At any annual meeting of stockholders, only such business shall be
conducted as shall have been brought before the annual meeting (i) by or at the
direction of the chairman of the meeting or (ii) by any stockholder who complies
with the procedures set forth in this Section 5.
For business properly to be brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in proper
written 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 more than 180 days nor less than 120 days in
advance of the date of the corporation's proxy statement released to
stockholders in connection with the previous year's annual meeting. To be in
proper form, a stockholder's notice to the Secretary shall set forth in writing
as to each matter the stockholder proposes to bring the annual meeting the
following information: (i) a description of the business desired to be brought
before the annual meeting, consisting of 500 or fewer words conforming to the
requirements of Schedule 14A of the Regulations of the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Regulations"); (ii) the reasons for conducting such business at the annual
meeting; (iii) the name and address, as they appear on the corporations books,
of the stockholder proposing such business; (iv) the class and number of shares
of the corporation's capital stock which are beneficially owned by the
stockholder and the length of the time during which the stockholder beneficially
owned such shares; and (v) any material interest of the stockholder in such
business. Notwithstanding anything in these by-laws to the contrary, no business
shall be conducted at an annual meeting except in accordance with the procedures
set forth in this Section 5. The chairman of an annual meeting shall, if the
facts warrant, determine and declare to the annual meeting that business was not
properly brought before the annual meeting in accordance with the provisions of
this Section 5 and, if he should so determine, he shall so declare to the annual
meeting and any such business not properly brought before the annual meeting
shall not be transacted.
SECTION 6. VOTING PROCESS. If a quorum is present or represented the
affirmative vote of a majority of the shares of stock
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present or represented at the meeting shall be the act of the stockholders
unless the vote of a greater number of shares of stock is required by law, by
the Certificate of Incorporation or by these by-laws. Each outstanding share of
stock having voting power, shall be entitled to one vote on each matter
submitted to a vote at a meeting of stockholders. A shareholder may vote either
in person or by proxy executed in writing by the stockholder or by his duly
authorized attorney-in-fact. The term, validity and enforceability of any proxy
shall be determined in accordance with the General Corporation Law of the State
of Delaware.
ARTICLE III.
DIRECTORS
SECTION 1. POWERS, NUMBER, QUALIFICATION AND TERM. The property, affairs
and business of the corporation shall be managed by its board of directors,
consisting of five persons. At the annual meeting held in 1976, directors shall
be elected in three classes as nearly equal in number as may be. The terms of
office of the first class shall expire at the annual meeting in 1977, and of the
second and third classes at the annual meetings in 1978 and 1979 respectively.
At each annual election held after 1976, directors shall be elected for three
year terms to succeed those whose terms then expire. If a vacancy shall occur in
any class the director elected to fill that vacancy shall be elected for the
remaining term of that class. The directors shall have power at any time when a
stockholders' meeting is not in session to increase or decrease their own number
by an amendment to these By-Laws. If the number of directors be increased, the
additional directors shall be elected for such terms as shall maintain equality
in the annual classes, as nearly as may be. Vacancies created by an amendment
increasing the number of directors may be filled like other vacancies by a
majority of the directors in office at the time. If the number of directors be
reduced, the terms of the directors remaining in office need not be changed, but
the terms of the directors elected to succeed them shall be changed to the
extent necessary to maintain equality in the annual classes as nearly as may be.
The number of directors shall never be less than three. Directors need not be
stockholders.
SECTION 2. QUORUM. A majority of the members of the board of directors
then acting at a meeting duly assembled shall constitute a quorum for the
transaction of business, unless a greater number is required by law, by the
Certificate of Incorporation or by these by-laws. If a quorum shall not be
present at any meeting of directors, 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 3. VACANCIES. In case one or more vacancies shall occur in the
board of directors by reason of death, resignation or otherwise, except insofar
as otherwise provided in the case of a vacancy or vacancies occurring by reason
of removal by the stockholders, the remaining directors, although less than a
quorum, may, by a majority vote, elect a successor or successors for the
unexpired term or terms.
SECTION 4. PLACE OF MEETINGS. Meetings of the board of
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directors, regular or special, may be held either within or without the State of
Delaware.
SECTION 5. FIRST MEETING. The first meeting of each newly elected board of
directors shall be held immediately following and at the place of the annual
meeting of stockholders and no other notice of such meeting shall be necessary
to the newly elected directors in order legally to constitute the meeting,
provided a quorum shall be present, or it may convene at such place and time as
shall be fixed by the consent in writing or the attendance of all the directors.
SECTION 6. REGULAR MEETINGS. Regular meetings of the board of directors
may be held upon such notice, or without notice, and at such time and at such
place as shall from time to time be determined by the board.
SECTION 7. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by the Chairman or the President or by the number of directors who
then legally constitute a quorum. Notice of each special meeting shall, if
mailed, be addressed to each director at his last known address at least four
(4) days prior to the date on which the meeting is to be held; or such notice
shall be sent to each director at such address by telegram, telex, or facsimile,
or be delivered to him personally, not later than one full day before the date
on which such meeting is to be held.
SECTION 8. NOTICE; WAIVER. Attendance of a director at any meeting shall
constitute a waiver of notice of such meeting, except where a director attends
for the express purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice or waiver of notice of such
meeting.
SECTION 9. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken at a meeting of the directors may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the directors entitled to vote with respect to the subject matter thereof. In
addition, meetings of the board may be held by means of conference telephone as
permitted by the General Corporation Law of the State of Delaware.
SECTION 10. ACTION. Except as otherwise provided by law or in the
Certificate of Incorporation or these by-laws, if a quorum is present the
affirmative vote of a majority of the members of the board of directors present
will be required for any action.
SECTION 11. REMOVAL OF DIRECTORS. Subject to any contrary provisions of
law, a director may be removed only for cause, either by affirmative vote of the
holders of a majority of the outstanding shares of stock entitled to vote for
the election of directors or by affirmative vote of at least two thirds of the
remaining members of the board. A finding of cause shall be made only upon
notice to the director to be removed and opportunity to respond to evidence that
the director is unfit to serve.
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SECTION 12. NOMINATIONS. Subject to the rights of the holders of any class
or series of stock having a preference over the Class A common stock as to
dividends or upon liquidation, nominations for the election of directors may be
made by the board of directors or by any stockholder entitled to vote for the
election of directors. Any stockholder entitled to vote for the election of
directors at a meeting may nominate persons for election as directors only if
written notice of such stockholder's intent to make such nomination is given,
either by personal delivery or by United States mail, postage prepaid, to the
Secretary of the corporation not later than (i) with respect to an election to
be held at an annual meeting of stockholders, not more than 180 nor less than
120 days in advance of the date of the corporation's proxy statement released to
stockholders in connection with the previous year's annual meeting; and (ii)
with respect to an election to be held at a special meeting of stockholders for
the election of directors, the close of business on the seventh day following
the date on which notice of such meeting is first given to stockholders. Each
such notice shall set forth: (a) the name and address as they appear in the
corporation's books of the stockholder who intends to make the nomination; (b)
the name and address of the person or persons to be nominated; (c) a
representation of the stockholder listing the class and number of shares of
stock of the corporation beneficially held by him or her and that he or she
intends to appear in person or by proxy at the meeting to nominate the person or
persons specified in the notice; (d) a description of all arrangements or
understandings between the stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder; (e) such other information
regarding each nominee proposed by such stockholder as would have been required
to be included in a proxy statement filed pursuant to Schedule 14A of the
Regulations had each nominee been nominated, or intended to be nominated, by the
board of directors; and (f) the consent of each nominee to serve as a director
of the corporation if so elected. The chairman of the meeting may refuse to
acknowledge the nomination of any person not made in compliance with the
foregoing procedure.
ARTICLE IV.
COMMITTEES
SECTION 1. COMMITTEES. The Board may, by resolution adopted by a majority
of the whole Board, designate one or more committees, each of which shall,
except as otherwise prescribed by law, have such authority of the Board as shall
be specified in the resolution of the Board designating such committee. A
majority of all the members of such committee may determine its action and fix
the time and place of its meeting, unless the Board shall otherwise provide. The
Board shall have the power at any time to change the membership of, to fill all
vacancies in and to discharge any such committee, either with or without cause.
SECTION 2. PROCEDURE; MEETINGS; QUORUM. Regular meetings of the committees
of the Board, of which no notice shall be necessary, may be held at such times
and places as shall be fixed by resolution adopted by a majority of the members
thereof. Special meetings of the committees of the Board shall be called at the
request of the Chairman or a majority of members thereof. So far as applicable,
the provisions
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of Article III of these By-laws relating to notice, quorum and voting
requirements applicable to meetings of the Board shall govern meetings of the
committees of the Board. Each committee of the Board shall keep written minutes
of its proceedings and circulate summaries of such written minutes to the Board
before or at the next meeting of the Board.
ARTICLE V.
OFFICERS
SECTION 1. NUMBER. The board of directors at its first meeting after each
annual meeting of stockholders shall choose a Chairman, a President, a Secretary
and a Treasurer, none of whom need be a member of the board. The board of
directors way also choose one or more Executive Vice Presidents, one or more
vice presidents, assistant secretaries and assistant treasurers. The board of
directors may appoint such other officers and agents as it shall deem necessary,
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the board of
directors Two or more offices may be held by the same person.
SECTION 2. COMPENSATION. The salaries or other compensation of all
officers of the corporation shall be fixed by the board of directors. No officer
shall be prevented from receiving a salary or other compensation by reason of
the fact that he is also a director.
SECTION 3. TERM; REMOVAL; VACANCY. The officers of the corporation shall
hold office until their successors are chosen and qualify. Any officer may be
removed at any time, with or without cause, by the Affirmative vote of a
majority of the whole board of directors. Any vacancy occurring in any office of
the corporation shall be filled by the board of directors.
SECTION 4. CHAIRMAN. The Chairman shall, if one be elected, preside at all
meetings of the board of directors and shall be the chief executive officer of
the corporation.
SECTION 5. PRESIDENT. The President shall be the chief operating officer
of the corporation, shall preside at all meetings of the stockholders and the
board of directors in the absence of the Chairman, shall have general
supervision over the business of the corporation and shall see that all
directions and resolutions of the board of directors are carried into affect.
SECTION 6. EXECUTIVE VICE PRESIDENT. The Executive Vice President 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 board of directors may from time to time prescribe. If there
shall be more than one Executive Vice President, the Executive Vice Presidents
shall perform such duties and exercise such powers in the absence or disability
of the President, in the order determined by the board of directors. The vice
presidents shall in the absence or disability of the President and of the
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
board of directors may from time to time
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prescribe. If there shall be more than one vice president, the vice presidents
shall perform such duties and exercise such powers in the absence or disability
of the President and of the Executive Vice President, in the order determined by
the board of directors.
SECTION 7. SECRETARY. The Secretary shall 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. He shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the board of directors, and
shall perform such other duties as may be prescribed by the board of directors
or President, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or an assistant secretary, shall have
the authority to affix the same to an instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such
assistant secretary. The board of directors may give general authority to any
other officer to affix the seal of the corporation and to attest the affixing by
his signature.
SECTION 8. ASSISTANT SECRETARY. The assistant secretary, if there shall be
one, or if there shall be more than one, the assistant secretaries in the order
determined by the board of directors, 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 powers as the board of directors may
from time to time prescribe.
SECTION 9. TREASURER. 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
deposit all moneys 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. He shall disburse the funds of the corporation as may be ordered by
the board of directors, taking proper vouchers for such disbursements, and shall
render to the Chairman, the President and the board of directors, at its regular
meetings, or when the board of directors so requires, an account of all of his
transactions as Treasurer and of the financial condition of the corporation.
SECTION 10. ASSISTANT TREASURER. The assistant treasurer, if there shall
be one, or, if there shall be more than one, the assistant treasurers in the
order 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.
ARTICLE VI.
CAPITAL STOCK
SECTION 1. FORM. The shares of the capital stock of the corporation shall
be represented by certificates in such form as shall be approved by the board of
directors and shall be signed by the
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Chairman, the President, an Executive Vice President or a vice president, and by
the Treasurer or an assistant treasurer or the Secretary or an assistant
secretary of the corporation manually or by facsimile, and may be sealed with
the seal of the corporation or a facsimile thereof.
SECTION 2. LOST AND DESTROYED CERTIFICATES. The board of directors may
direct a new certificate to be issued in place of any certificate theretofore
issued by the corporation alleged to have been lost or destroyed. When
authorizing such issue of a new certificate, the board of directors, in its
discretion and as a condition precedent to the issuance thereof, may prescribe
such terms and conditions as it deems expedient, and may require such
indemnities as it deems adequate, to protect the corporation from any claim that
may be made against it with respect to any such certificate alleged to have been
lost or destroyed.
SECTION 3. TRANSFER OF SHARES. Upon surrender to the corporation or the
transfer agent of the corporation of a certificate representing shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, a new certificate shall be issued to the person entitled
thereto, and the old certificate cancelled and the transaction recorded upon the
books of the corporation.
ARTICLE VII.
INDEMNIFICATION
SECTION 1. (a) The corporation shall indemnify, subject to the
requirements of subsection (d) of this Section, any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation), by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests, of the corporation and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) The corporation shall indemnify, subject to the requirements of
subsection (d) of this Section, any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
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action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he is or was a director, officer, employee
or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Court of Chancery of the State of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery of the State of Delaware or such other court shall deem
proper.
(c) To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
Section, or in defense of any claim, issue or matter therein, the corporation
shall indemnify him against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this Section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
Section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses incurred by a director, officer, employee or agent in
defending a civil or criminal action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation as authorized in this Section.
Such expenses incurred by other employees and agents may be so paid upon such
terms and conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this Section shall not limit the
corporation from providing any other indemnification or advancement of expenses
permitted by law nor shall they be deemed exclusive of any other rights to which
a person seeking indemnification
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or advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) The corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such liability under
the provisions of this Section.
(h) For the purposes of this Section, references to "the corporation"
shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, employees or
agents, so that any person who in or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Section with respect to the
resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of this Section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to any employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
Section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section shall, unless otherwise provided when
authorized or ratified by the board of directors, continue as to a person who
has ceased to be a director, officer, employee or agent of the corporation and
shall inure to the benefit of the heirs executors and administrators of such a
person.
(k) For purposes of this Article the term "corporation" shall include
wholly-owned subsidiaries of the corporation.
ARTICLE VIII.
GENERAL PROVISIONS
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SECTION 1. CHECKS. All checks or 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.
SECTION 2. FISCAL YEAR. The fiscal year of the corporation shall be
determined, and may be changed, by resolution of the board of directors.
SECTION 3. 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 in any manner reproduced.
ARTICLE IX.
AMENDMENTS
SECTION 1. These by-laws may be altered, amended, supplemented or repealed
or new by-laws may be adopted by a resolution adopted by a majority of the whole
board of directors at any regular or special meeting of the board.
Adopted by the Board of Directors of P&F Industries, Inc. on September
23, 1999.
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