EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
SMTC CORPORATION
July 27, 2000
ARTICLE 1 - OFFICES
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1.1 Registered Offices. The registered office of SMTC Corporation (the
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"Corporation") in the State of Delaware shall be located at 1013 Centre Road, in
the City of Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address shall be Corporation Service Company. The
registered office and/or registered agent of the Corporation may be changed from
time to time by action of the Board of Directors.
1.2 Other offices. The Corporation may also have offices at such other
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places both within and without the State of Delaware as the Board of Directors
may from time to time determine or the business of the Corporation may require.
1.3 Books. The books of the Corporation may be kept within or without of
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the State of Delaware as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE 2 - STOCKHOLDERS
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2.1 Place of Meetings. All meetings of stockholders shall be held at such
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place within or without the State of Delaware as may be designated from time to
time by the Board of Directors or the Chief Executive Officer (or, if there is
no Chief Executive Officer, the President) or, if not so designated, at the
registered office of the corporation.
2.2 Annual Meeting. The annual meeting of stockholders for the election of
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directors and for the transaction of such other business as may properly be
brought before the meeting shall be held within six months after the end of each
fiscal year on a date to be fixed by the Board of Directors or the Chief
Executive Officer (or, if there is no Chief Executive Officer, the President),
unless that day be a legal holiday at the place where the meeting is to be held,
in which case the meeting shall be held at the same hour on the next succeeding
day not a legal holiday, or at such other date and time as shall be fixed by the
Board of Directors or the Chief Executive Officer (or, if there is no Chief
Executive Officer, the President) and stated in the notice of the meeting. If no
annual meeting is held in accordance with the foregoing provisions, the Board of
Directors shall cause the meeting to be held as soon thereafter as convenient.
If no annual meeting is held in accordance with the foregoing provisions, a
special meeting may be held in lieu of the annual meeting, and any action taken
at that special meeting shall have the same effect as if it had been taken at
the annual meeting, and in such case all references in these By-Laws to the
annual meeting of stockholders shall be deemed to refer to such special meeting.
2.3 Special Meeting. Special meetings of stockholders may be called at any
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time by only the Chairman of the Board of Directors, the Chief Executive Officer
(or, if there is no Chief Executive Officer, the President) or by the Board of
Directors of the Corporation pursuant to a resolution adopted by the affirmative
vote of a majority of the total number of directors then in
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office. Any business transacted at any special meeting of stockholders shall be
limited to matters relating to the purpose or purposes stated in the notice of
meeting.
2.4 Notice of Meetings. Except as otherwise provided by law, written
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notice of each meeting of stockholders, whether annual or special, shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting to each stockholder entitled to vote at such meeting. The notices of
all meetings shall state the place, date and hour of the meeting. The notice of
a special meeting shall state, in addition, the purpose or purposes for which
the meeting is called. If mailed, notice is given when deposited in the United
States mail, postage prepaid, directed to the stockholder at his or her address
as it appears on the records of the corporation.
2.5 Voting List. The officer who has charge of the stock ledger of the
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corporation shall prepare, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten (10) days prior to the meeting, at a place within the city 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 of the meeting, and may be inspected by any
stockholder who is present.
2.6 Quorum. Except as otherwise provided by law, the Certificate of
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Incorporation or these By-Laws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
the meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business.
2.7 Adjournments. Any meeting of stockholders may be adjourned to any
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other time and to any other place at which a meeting of stockholders may be held
under these By-Laws by a majority of the stockholders present or represented at
the meeting and entitled to vote, although less than a quorum, or, if no
stockholder is present, by any officer entitled to preside at or to act as
Secretary of such meeting. It shall not be necessary to notify any stockholder
of any adjournment of less than thirty (30) days if the time and place of the
adjourned meeting are announced at the meeting at which adjournment is taken,
unless after the adjournment a new record date is fixed for the adjourned
meeting. At the adjourned meeting, the corporation may transact any business
which might have been transacted at the original meeting.
2.8 Voting and Proxies. Except as otherwise provided by the General
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Corporation Law of the State of Delaware, the Certificate of Incorporation or
these By-Laws, each stockholder shall have one vote for each share of capital
stock entitled to vote and held of record by such stockholder. Each stockholder
of record entitled to vote at a meeting of stockholders may vote in person or
may authorize another person or persons to vote or act for him or her by written
proxy executed by the stockholder or his or her authorized agent and delivered
to the
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Secretary of the corporation. No such proxy shall be voted or acted upon after
three years from the date of its execution, unless the proxy expressly provides
for a longer period.
2.9 Proxy Representation. Every stockholder may authorize another person
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or persons to act for him or her by proxy in all matters in which a stockholder
is entitled to participate, whether by waiving notice of any meeting, objecting
to or voting or participating at a meeting, or expressing consent or dissent
without a meeting. The delivery of a proxy on behalf of a stockholder consistent
with telephonic or electronically transmitted instructions obtained pursuant to
procedures of the corporation reasonably designed to verify that such
instructions have been authorized by such stockholder shall constitute execution
and delivery of the proxy by or on behalf of the stockholder. No proxy shall be
voted or acted upon after three years from its date unless such proxy provides
for a longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and, if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be made
irrevocable regardless of whether the interest with which it is coupled is an
interest in the stock itself or an interest in the corporation generally. The
authorization of a proxy may but need not be limited to specified action,
provided, however, that if a proxy limits its authorization to a meeting or
meetings of stockholders, unless otherwise specifically provided such proxy
shall entitle the holder thereof to vote at any adjourned session but shall not
be valid after the final adjournment thereof. A proxy purporting to be
authorized by or on behalf of a stockholder, if accepted by the corporation in
its discretion, shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger.
2.10 Action at Meeting. When a quorum is present at any meeting, a
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plurality of the votes properly cast for election to any office shall elect to
such office and a majority of the votes properly cast upon any question other
than an election to an office shall decide the question, except when a larger
vote is required by law, by the Certificate of Incorporation or by these Bylaws.
No ballot shall be required for any election unless requested by a stockholder
present or represented at the meeting and entitled to vote in the election.
2.11 Nomination of Directors. Only persons who are nominated in accordance
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with the following procedures shall be eligible for election as directors. The
nomination for election to the Board of Directors of the corporation at a
meeting of stockholders may be made by the Board of Directors or by any
stockholder of the corporation entitled to vote for the election of directors at
such meeting who complies with the notice procedures set forth in this Section
2.11. Such nominations, other than those made by or on behalf of the Board of
Directors, shall be made by notice in writing delivered or mailed by first class
United States mail, postage prepaid, to the Secretary, and received at the
principal executive offices of the corporation not less than sixty (60) days nor
more than ninety (90) days prior to the anniversary date of the immediately
preceding annual meeting of stockholders; provided, however, that if the annual
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meeting is not held within thirty (30) days before or after such anniversary
date, then such nomination shall have been delivered to or mailed and received
by the Secretary not later than the close of business on the 10th day following
the date on which the notice of the meeting was mailed or
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such public disclosure was made, whichever occurs first. Such notice shall set
forth (a) as to each proposed nominee (i) the name, age, business address and,
if known, residence address of each such nominee, (ii) the principal occupation
or employment of each such nominee, (iii) the number of shares of stock of the
corporation which are beneficially owned by each such nominee, and (iv) any
other information concerning the nominee that must be disclosed as to nominees
in proxy solicitations pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended, including such person's written consent to be named as
a nominee and to serve as a director if elected; and (b) as to the stockholder
giving the notice (i) the name and address, as they appear on the corporation's
books, of such stockholder and (ii) the class and number of shares of the
corporation which are beneficially owned by such stockholder. The corporation
may require any proposed nominee to furnish such other information as may
reasonably be required by the corporation to determine the eligibility of such
proposed nominee to serve as a director of the corporation.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he or she should so determine, he or she shall so
declare to the meeting and the defective nomination shall be disregarded.
2.12 Notice of Business at Annual Meetings. At an annual meeting of the
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stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, (c) otherwise properly brought before an annual meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, if such business relates to the election of directors of the
corporation, the procedures in Section 2.11 must be complied with. If such
business relates to any other matter, the stockholder must have given timely
notice thereof in writing to the Secretary. 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) days nor more than ninety (90) days
prior to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that if the annual meeting is not held within
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thirty (30) days before or after such anniversary date, then for the notice by
the stockholder to be timely it must be so received not later than the close of
business on the 10th day following the date on which the notice of the meeting
was mailed or such public disclosure was made, whichever occurs first. A
stockholder's notice to the Secretary shall set forth as 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 address, as
they appear on the corporation's books, of the stockholder proposing such
business, (c) the class and number of shares of the corporation which are
beneficially owned by the stockholder and (d) any material interest of the
stockholder in such business. Notwithstanding anything in these By-Laws to the
contrary, no business shall be conducted at any annual meeting except in
accordance with the
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procedures set forth in this Section 2.12, except that any stockholder proposal
which complies with Rule 14a-8 of the proxy rules, or any successor provision,
promulgated under the Securities Exchange Act of 1934, as amended, and is to be
included in the corporation's proxy statement for an annual meeting of
stockholders shall be deemed to comply with the requirements of this Section
2.12.
The chairman of the 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 1.12, and if he or she should
so determine, the chairman shall so declare to the meeting and any such business
not properly brought before the meeting shall not be transacted.
2.13 Action without Meeting. For so long as this Corporation shall have a
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class of stock registered pursuant to the provisions of the Securities Exchange
Act of 1934, stockholders may not take any action by written consent in lieu of
a meeting.
2.14 Organization. The Chairman of the Board, or in his or her absence the
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President shall call meetings of the stockholders to order, and act as chairman
of such meeting; provided, however, that the Board of Directors may appoint any
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stockholder to act as chairman of any meeting in the absence of the Chairman of
the Board. The Secretary of the corporation shall act as secretary at all
meetings of the stockholders; provided, however, that in the absence of the
Secretary at any meeting of the stockholders, the acting chairman may appoint
any person to act as secretary of the meeting.
ARTICLE 3 - DIRECTORS
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3.1 General Powers. The business and affairs of the corporation shall be
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managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws. In the event of a vacancy in the
Board of Directors, the remaining directors, except as otherwise provided by
law, may exercise the powers of the full Board of Directors until the vacancy is
filled.
3.2 Number; Election and Qualification. The number of directors which
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shall constitute the whole Board of Directors shall be determined by resolution
of the Board of Directors, but in no event shall be less than three. The
directors shall be elected at the annual meeting of stockholders by such
stockholders as have the right to vote on such election. The directors need not
be stockholders of the corporation.
3.3 Classes of Directors. The Board of Directors shall be and is divided
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into three classes: Class I, Class II and Class III. No one class shall have
more than one director more than any other class. If a fraction is contained in
the quotient arrived at by dividing the designated number of directors by three,
then, if such fraction is one-third, the extra director shall be a member of
Class III, and if such fraction is two-thirds, one of the extra directors shall
be a member of Class III and
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one of the extra directors shall be a member of Class II, unless otherwise
provided from time to time by resolution adopted by the Board of Directors.
3.4 Terms of Office. Except as otherwise provided in the Certificate of
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Incorporation or these By-Laws, each director shall serve for a term ending on
the date of the third annual meeting following the annual meeting at which such
director was elected; provided, however, that each initial director in Class I
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shall serve for a term ending on the date of the annual meeting of stockholders
in 2001; each initial director in Class II shall serve for a term ending on the
date of the annual meeting of stockholders in 2002; and each initial director in
Class III shall serve for a term ending on the date of the annual meeting of
stockholders in 2003; and provided, further, that the term of each director
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shall be subject to the election and qualification of his or her successor and
to his or her earlier death, resignation or removal.
3.5 Allocation of Directors Among Classes in the Event of Increases or
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Decreases in the Number of Directors. In the event of any increase or decrease
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in the authorized number of directors, (i) each director then serving as such
shall nevertheless continue as a director of the class of which he or she is a
member and (ii) the newly created or eliminated directorships resulting from
such increase or decrease shall be apportioned by the Board of Directors among
the three classes of directors so as to ensure that no one class has more than
one director more than any other class. To the extent possible, consistent with
the foregoing rule, any newly created directorships shall be added to those
classes whose terms of office are to expire at the latest dates following such
allocation, and any newly eliminated directorships shall be subtracted from
those classes whose terms of offices are to expire at the earliest dates
following such allocation, unless otherwise provided from time to time by
resolution adopted by the Board of Directors.
3.6 Vacancies. Any vacancy in the Board of Directors, however occurring,
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including a vacancy resulting from an enlargement of the Board of Directors,
shall be filled only by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director. A director elected
to fill a vacancy shall be elected for the unexpired term of his or her
predecessor in office, and a director chosen to fill a position resulting from
an increase in the number of directors shall hold office until the next election
of the class for which such director shall have been chosen, subject to the
election and qualification of his or her successor and to his or her earlier
death, resignation or removal.
3.7 Resignation. Any director may resign by delivering his or her written
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resignation to the corporation at its principal office or to the President or
Secretary. Such resignation shall be effective upon receipt unless it is
specified to be effective at some other time or upon the happening of some other
event.
3.8 Regular Meetings. The regular meetings of the Board of Directors may
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be held without notice at such time and place, either within or without the
State of Delaware, as shall be determined from time to time by the Board of
Directors; provided, that any director who is absent when such a determination
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is made shall be given notice of the determination. A regular meeting
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of the Board of Directors may be held without notice immediately after and at
the same place as the annual meeting of stockholders.
3.9 Special Meetings. Special meetings of the Board of Directors may be
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held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board of Directors, the Chief Executive Officer
(or if there is no Chief Executive Officer, the President), two or more
directors or by one director in the event that there is only a single director
in office.
3.10 Notice of Special Meetings. Notice of any special meeting of the Board
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of Directors shall be given to each director by the Secretary or by the officer
or one of the directors calling the meeting. The notice shall be duly given to
each director (i) by giving notice to such director in person or by telephone at
least twenty four (24) hours in advance of the meeting, (ii) by sending a
telegram, telecopy, or telex, or delivering written notice by hand, to his or
her last known business or home address at least twenty four (24) hours in
advance of the meeting, or (iii) by mailing written notice to his or her last
known business or home address at least seventy two (72) hours in advance of the
meeting. A notice or waiver of notice of a special meeting of the Board of
Directors need not specify the purposes of the meeting.
3.11 Meetings by Telephone Conference Calls. The Board of Directors or any
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members of any committee of the Board of Directors designated by the directors
may participate in a meeting of the Board of Directors or such committee by
means of conference telephone, video conference or other communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at
such meeting.
3.12 Quorum. A majority of the total number of the whole Board of Directors
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shall constitute a quorum at all meetings of the Board of Directors. In the
event one or more of the directors shall be disqualified to vote at any meeting,
then the required quorum shall be reduced by one for each such director so
disqualified; provided, however, that in no case shall less than one-third (1/3)
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of the number of directors so fixed constitute a quorum. In the absence of a
quorum at any such meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice, other than announcement at the
meeting, until a quorum shall be present.
3.13 Action at Meeting. At any meeting of the Board of Directors at which a
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quorum is present, the vote of a majority of those present shall be sufficient
to take any action, unless a different vote is specified by law, the Certificate
of Incorporation or these By-Laws.
3.14 Action by Consent. Any action required or permitted to be taken at any
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meeting of the Board of Directors or of any committee of the Board of Directors
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent to the action in writing, and the written consents are
filed with the minutes of proceedings of the Board of Directors or committee of
the Board of Directors, as applicable.
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3.15 Removal. The directors of the corporation may not be removed without
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cause and may be removed for cause only by the affirmative vote of the holders
of seventy-five percent (75%) of the shares of the capital stock of the
corporation issued and outstanding and entitled to vote generally in the
election of directors cast at a meeting of the stockholders called for that
purpose.
3.16 Committees. The Board of Directors may, by resolution passed by a
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majority of the whole Board, designate one or more committees, each committee to
consist of one or more of the directors of the corporation. The Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. In the absence or disqualification of a member of a committee,
the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the corporation
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the Board of
Directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the directors or in such
rules, its business shall be conducted as nearly as possible in the same manner
as is provided in these By-Laws for the Board of Directors.
3.17 Compensation of Directors. The directors may be paid such compensation
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for their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to time determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE 4 - OFFICERS
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4.1 Enumeration. The officers of the corporation shall consist of a Chief
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Executive Officer, a President, a Chief Financial Officer, a Secretary and a
Treasurer. The Board of Directors may appoint other officers with such titles
and powers as it may deem appropriate, including, without limitation one or more
Vice Presidents and one or more Controllers.
4.2 Election. The Chief Executive Officer, President, Chief Financial
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Officer, Secretary and Treasurer shall be elected annually by the Board of
Directors at its first meeting following the annual meeting of stockholders.
Other officers may be appointed by the Board of Directors at such meeting or at
any other meeting.
4.3 Qualification. No officer need be a stockholder of the corporation.
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Any two or more offices may be held by the same person.
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4.4 Tenure. Except as otherwise provided by law, by the Certificate of
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Incorporation or by these By-Laws, each officer shall hold office until his or
her successor is elected and qualified, unless a different term is specified in
the vote choosing or appointing him or her, or until his or her earlier death,
resignation or removal.
4.5 Resignation and Removal. Any officer may resign by delivering his or
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her written resignation to the corporation at its principal office or to the
Chief Executive Officer or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the
happening of some other event. Any officer may be removed at any time, with or
without cause, by vote of a majority of the entire number of directors then in
office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following his or her resignation or removal, or any right to damages
on account of such removal, whether his of her compensation be by the month or
by the year or otherwise, unless such compensation is expressly provided in a
duly authorized written agreement with the corporation.
4.6 Vacancies. The Board of Directors may fill any vacancy occurring in
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any office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of Chief Executive
Officer, President, Secretary and Treasurer. Each such successor shall hold
office for the unexpired term of his or her predecessor and until his or her
successor is elected and qualified, or until his or her earlier death,
resignation or removal.
4.7 Chairman of the Board. The Board of Directors may appoint a Chairman
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of the Board. If the Board of Directors appoints a Chairman of the Board, he or
she shall perform such duties and possess such powers as are assigned to him or
her by the Board of Directors.
4.8 Chief Executive Officer. The Chief Executive Officer shall, subject to
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the direction of the Board of Directors, have general charge and supervision of
the business of the corporation. Unless otherwise provided by the Board of
Directors, he or she shall preside at all meetings of the stockholders and, if
he or she is a director and subject to the provisions of Section 4.7, at all
meetings of the Board of Directors. The Chief Executive Officer shall perform
such other duties and possess such other powers as the Board of Directors may
from time to time prescribe.
4.9 President. The President shall perform such duties and possess such
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powers as the Board of Directors or the Chief Executive Officer may from time to
time prescribe. In the event of the absence, inability or refusal to act of the
Chief Executive Officer, the President shall perform the duties of the Chief
Executive Officer and when so performing shall have all the powers of and be
subject to all the restrictions upon the office of Chief Executive Officer.
4.10 Chief Financial Officer. The Chief Financial Officer shall perform
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such duties and possess such powers as the Board of Directors or the Chief
Executive Officer may from time to time
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prescribe. The Chief Financial Officer shall have the custody of the corporate
funds and securities; shall keep full and accurate all books and accounts of the
Corporation as shall be necessary or desirable in accordance with applicable law
or generally accepted accounting principles; shall deposit all monies and other
valuable effects in the name and to the credit of the Corporation as may be
ordered by the Chairman of the Board or the Board of Directors; shall cause the
funds of the Corporation to be disbursed when such disbursements have been duly
authorized, taking proper vouchers for such disbursements; and shall render to
the Board of Directors, at its regular meeting or when the Board of Directors so
requires, an account of the Corporation.
4.11 Vice Presidents. Any Vice President shall perform such duties and
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possess such powers as the Board of Directors, the Chief Executive Officer or
the President may from time to time prescribe. The Board of Directors may assign
to any Vice President the title of Executive Vice President, Senior Vice
President or any other such title.
4.12 Controllers. Any Controller shall perform such duties and possess such
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powers as the Board of Directors, the Chief Executive Officer or any Vice
President may from time to time prescribe. The Board of Directors may assign to
any Controller the title of Assistant Controller or any other such title.
4.13 Secretary. The Secretary shall perform such duties and possess such
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powers as the Board of Directors or the Chief Executive Officer may from time to
time prescribe. In addition, the Secretary shall perform such duties and have
such powers as are incident to the office of the Secretary, including without
limitation the duty and power to give notices of all meetings of stockholders
and special meetings of the Board of Directors, to attend all meetings of
stockholders and the Board of Directors and keep a record of the proceedings, to
maintain a stock ledger and prepare lists of stockholders and their addresses as
required, to be custodian of corporate records and the corporate seal and to
affix and attest to the same on documents.
In the event of the absence, inability or refusal to act of the Secretary
at any meeting of stockholders or directors, the person presiding at the meeting
shall designate a temporary secretary to keep a record of the meeting.
4.14 Treasurer. The Treasurer shall perform such duties and possess such
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powers as the Board of Directors, the Chief Executive Officer or the Chief
Financial Officer may from time to time prescribe. In addition, the Treasurer
shall perform such duties and have such powers as are incident to the office of
Treasurer, including without limitation the duty and power to keep and be
responsible for all funds and securities of the corporation, to deposit funds of
the corporation in depositories selected in accordance with these By-Laws, to
disburse such funds as ordered by the Board of Directors, to make proper
accounts of such funds, and to render as required by the Board of Directors
statements of all such transactions and of the financial condition of the
corporation. Unless the Board of Directors has designated another officer as
Chief Financial Officer, the Treasurer shall be the Chief Financial Officer of
the corporation.
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In the event of the absence, inability or refusal to act of the Treasurer,
the Board of Directors shall appoint a temporary treasurer, who shall perform
the duties and exercise the powers of the Treasurer.
4.15 Other Officers, Assistant Officers and Agents. Officers, assistant
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officers and agents, if any, other than those whose duties are provided for in
these By-laws, shall have such authority and perform such duties as may from
time to time be prescribed by resolution of the Board of Directors.
4.16 Salaries. Officers of the corporation shall be entitled to such
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salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE 5 - CAPITAL STOCK
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5.1 Issuance of Stock. Unless otherwise voted by the stockholders and
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subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
5.2 Certificates of Stock. Every holder of stock of the corporation shall
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be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him or her in the corporation. Each such certificate shall be signed by, or in
the name of the corporation by, the Chairman of the Board of Directors, the
Chief Executive Officer or the President, and the Treasurer or the Secretary of
the corporation. Any or all of the signatures on the certificate may be a
facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the By-Laws,
applicable securities laws or any agreement among any number of stockholders or
among such holders and the corporation shall have conspicuously noted on the
face or back of the certificate either the full text of the restriction or a
statement of the existence of such restriction.
5.3 Transfers. Except as otherwise established by rules and regulations
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adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or its transfer agent of the certificate representing such shares
properly endorsed or accompanied by a written assignment or power of attorney
properly executed, and with such proof of authority or the authenticity of
signature as the corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation
or by these By-Laws, the corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all
purposes, including the payment of dividends and the right to vote with respect
to such stock, regardless of any
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transfer, pledge or other disposition of such stock, until the shares have been
transferred on the books of the corporation in accordance with the requirements
of these By-Laws.
5.4 Lost, Stolen or Destroyed Certificates. The corporation may issue a
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new certificate of stock in place of any previously issued certificate alleged
to have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
5.5 Record Date. The Board of Directors may fix in advance a date as a
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record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than sixty (60) nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action to which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
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adjourned meeting.
5.6 Dividends. Subject to limitations contained in the General Corporation
---------
Law of the State of Delaware, the Certificate of Incorporation and these By-
laws, the Board of Directors may declare and pay dividends upon the shares of
capital stock of the Corporation, which dividends may be paid either in cash, in
property or in shares of the capital stock of the Corporation.
ARTICLE 6 - GENERAL PROVISIONS
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6.1 Fiscal Year. Except as from time to time otherwise designated by the
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Board of Directors, the fiscal year of the corporation shall begin on the first
day of January in each year and end on the last day of December in each year.
6.2 Corporate Seal. The corporate seal shall be in such form as shall be
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approved by the Board of Directors.
6.3 Waiver of Notice. Whenever any notice whatsoever is required to be
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given by law, by the Certificate of Incorporation or by these By-Laws, a waiver
of such notice either in writing
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signed by the person entitled to such notice or such person's duly authorized
attorney, or by telegraph, cable or any other available method, whether before,
at or after the time stated in such waiver, or by the appearance of such person
at such meeting in person or by proxy, shall be deemed equivalent to such
notice. Any member of the Board of Directors or any committee thereof who is
present at a meeting shall be conclusively presumed to have waived notice of
such meeting except when such member attends for the express purpose of
objecting at the beginning of the meeting to the transaction of any business
because the meeting is not lawfully called or convened. Such member shall be
conclusively presumed to have assented to any action taken unless his or her
dissent shall be entered in the minutes of the meeting or unless his or her
written dissent to such action shall be filed with the person acting as the
secretary of the meeting before the adjournment thereof or shall be forwarded by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to any member
who voted in favor of such action.
6.4 Voting of Securities. Except as the directors may otherwise designate,
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the Chief Executive Officer or Treasurer may waive notice of, and act as, or
appoint any person or persons to act as, proxy or attorney-in-fact for this
corporation (with or without power of substitution) at, any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation.
6.5 Evidence of Authority. A certificate by the Secretary, or a temporary
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secretary, as to any action taken by the stockholders, directors, a committee or
any officer or representative of the corporation shall, as to all persons who
rely on the certificate in good faith, be conclusive evidence of such action.
6.6 Certificate of Incorporation. All references in these By-Laws to the
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Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended or restated and in effect from time
to time.
6.7 Transactions with Interested Parties. No contract or transaction
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between the corporation and one or more of the directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his, her or their votes are counted for such purpose, if:
(1) The material facts as to his, her or their relationship or
interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or committee of
the Board of Directors in good faith authorizes the contract or transaction by
the affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum;
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(2) The material facts as to his, her or their relationship or
interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(3) The contract or transaction is fair as to the corporation as
of the time it is authorized, approved or ratified by the Board of Directors, a
committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
6.8 Severability. Any determination that any provision of these By-Laws is
------------
for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
6.9 Pronouns. All pronouns used in these By-Laws shall be deemed to refer
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to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
6.10 Contracts. In addition to the powers otherwise granted to officers
---------
pursuant to Article 4 hereof, the Board of Directors may authorize any officer
or officers, or any agent or agents, of the Corporation to enter into any
contract or to execute and deliver any instrument in the name of and on behalf
of the Corporation, and such authority may be general or confined to specific
instances.
6.11 Loans. The Corporation may lend money to, or guarantee any obligation
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of, or otherwise assist any officer or other employee of the Corporation or of
its subsidiaries, including any officer or employee who is a Director of the
Corporation or its subsidiaries, whenever, in the judgment of the Directors,
such loan, guaranty or assistance may reasonably be expected to benefit the
Corporation. The loan, guaranty or other assistance may be with or without
interest, and may be unsecured, or secured in such manner as the Board of
Directors shall approve, including, without limitation, a pledge of shares of
stock of the Corporation. Nothing in this section shall be deemed to deny, limit
or restrict the powers of guaranty or warranty of the Corporation at common law
or under any statute.
6.12 Inspection of Books and Records. The Board of Directors shall have
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power from time to time to determine to what extent and at what times and places
and under what conditions and regulations the accounts and books of the
Corporation, or any of them, shall be open to the inspection of the
stockholders; and no stockholder shall have any right to inspect any account or
book or document of the Corporation, except as conferred by the laws of the
State of Delaware, unless and until authorized so to do by resolution of the
Board of Directors or of the stockholders of the Corporation.
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6.13 Section Headings. Section headings in these By-laws are for
----------------
convenience of reference only and shall not be given any substantive effect in
limiting or otherwise construing any provision herein.
6.14 Inconsistent Provisions. In the event that any provision of these By-
-----------------------
laws is or becomes inconsistent with any provision of the Restated Certificate
of Incorporation, the General Corporation Law of the State of Delaware or any
other applicable law, the provision of these By-laws shall not be given any
effect to the extent of such inconsistency but shall otherwise be given full
force and effect.
ARTICLE 7 - AMENDMENTS
----------------------
7.1 By the Board of Directors. These By-Laws may be altered, amended or
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repealed or new By-Laws may be adopted by the affirmative vote of a majority of
the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
7.2 By the Stockholders. Notwithstanding any other provision of law, the
-------------------
Certificate of Incorporation or these By-Laws, and notwithstanding the fact that
a lesser percentage may be specified by law, the affirmative vote of the holders
of at least seventy-five percent (75%) of the shares of the capital stock of the
corporation issued and outstanding and entitled to vote shall be required to
alter, amend or repeal any provision of these By-Laws or to adopt new By-Laws,
unless such alteration, amendment or repeal has been approved by a majority of
those directors who are not affiliated or associated with any person or entity
holding 10% or more of the voting power of the Corporation's outstanding capital
stock. Notwithstanding the foregoing, neither the Bain Capital Funds, Celerity
Partners nor Kilmer Electronics Group shall be deemed at any time to be an
entity holding 10% or more of the voting power of the Corporation's outstanding
capital stock without regard to the actual percentage of the voting power the
Corporation's outstanding capital stock held from time to time by any of them.
The Bain Capital Funds shall mean Bain Capital Fund VI, L.P., BCIP Associates
II, BCIP Trust Associates II, BCIP Associates II-B, BCIP Trust Associates II-C
and any other entity which receives investment advice from an advisor or
subadvisor to any of those entities or from an affiliate of such advisor or
subadvisor. Celerity Partners shall mean Celerity EMSIcon, LLC and any entity
which receives investment advice from any of its advisor(s) or subadvisor(s).
Kilmer Electronics Group shall mean Kilmer Electronic Groups, Limited and any
entity which controls it, which is controlled by it or is under common control
with it.
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