EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
TREX COMPANY, INC.
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the
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Corporation in the State of Delaware is 1013 Centre Road, in the City of
Wilmington, Delaware 19805, in the County of New Castle. The name of its
registered agent at such address is Corporation Service Company.
Section 2. Other Offices. The Corporation may also have offices at
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such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 1. Places of Meetings. All meetings of stockholders shall be
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held at such place or places in or outside of the State of Delaware as shall be
designated from time to time by the Board of Directors and stated in the notice
of meeting or waiver of notice thereof, subject to any provisions of the laws of
the State of Delaware.
Section 2. Annual Meetings. Unless otherwise determined from time to
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time by the Board of Directors, the annual meeting of stockholders shall be held
each year for the election of directors and the transaction of such other
business as may properly come before the meeting at such date and time as may be
designated by the Board of Directors. Written notice of the time and place of
the annual meeting shall be given by mail to each stockholder entitled to vote
at such meeting, at the stockholder's address as it appears on the records of
the Corporation, not less than ten (10) nor more than sixty (60) days prior to
the scheduled date thereof.
Section 3. Special Meetings. A special meeting of the stockholders
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of the Corporation may be called at any time by the Chairman of the Board or by
the Board of Directors pursuant to a resolution adopted by a majority of the
total number of directors which the Corporation would have if there were no
vacancies, but such special meeting may not be called by any other person or
persons. Written notice of the date, time, place and specific purpose or
purposes for which such meeting is called shall be given by mail to each
stockholder entitled to vote thereat at such stockholder's address as it appears
on the records of the Corporation not less
than ten (10) nor more than sixty (60) days prior to the scheduled date thereof.
Business transacted at any special meeting of stockholders shall be limited to
the purposes stated in the notice.
Section 4. Voting. At all meetings of stockholders, each stockholder
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entitled to vote on the record date as determined under these By-Laws or, if not
so determined, as prescribed under the laws of the State of Delaware, shall be
entitled to one vote for each share of stock standing on record in such
stockholder's name, subject to any voting powers, restrictions or qualifications
set forth in the Restated Certificate of Incorporation of the Corporation or any
amendment thereto (the "Restated Certificate of Incorporation").
Section 5. Quorum; Voting. At any stockholders meeting, a majority
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of the voting power of the shares of stock outstanding and entitled to vote
thereat, present in person or by proxy, shall constitute a quorum, but a smaller
interest may adjourn any meeting from time to time, and the meeting may be held
as adjourned without further notice, subject to such limitations as may be
imposed under the laws of the State of Delaware. When a quorum is present at any
meeting, the affirmative vote of the holders of a majority of the voting power
of the shares of stock entitled to vote thereon, present in person or by proxy,
shall decide any question brought before such meeting unless such question is
one upon which a different vote is required by express provision of the Restated
Certificate of Incorporation, these By-Laws, the rules or regulations of the New
York Stock Exchange, Inc. or any law or other rule or regulation applicable to
the Corporation, in which case such express provision shall govern.
Section 6. Inspectors of Election; Opening and Closing the Polls. The
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Board of Directors may, by resolution, appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives of the Corporation, to act at a meeting of stockholders and
make a written report thereof. One or more persons may be designated as
alternative inspectors to replace any inspector who fails to act. If no
inspector or alternate has been appointed to act, or if all inspectors or
alternates who have been appointed are unable to act at a meeting of
stockholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by the General Corporation Law of
the State of Delaware.
The chairman of the meeting shall fix and announce at the meeting the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at the meeting.
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Section 7. List of Stockholders. At least ten (10) days before every
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meeting of stockholders, a complete list of the stockholders entitled to vote at
the meeting, arranged in alphabetical order and showing the address and the
number of shares registered in the name of each stockholder, shall be prepared
by the secretary or the transfer agent in charge of the stock ledger of the
Corporation. Such list shall be open for examination by any stockholder as
required by the laws of the State of Delaware. The stock ledger shall be the
only evidence as to who are the stockholders entitled to examine such list or
the books of the Corporation or to vote in person or by proxy at such meeting.
Section 8. Written Consent in Lieu of Meeting. Except as otherwise
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provided for or fixed pursuant to the provisions of the Restated Certificate of
Incorporation relating to the rights of the holders of any series of preferred
stock, no action that is required or permitted to be taken by the stockholders
of the Corporation at any annual or special meeting of stockholders may be
effected by written consent of stockholders in lieu of a meeting of
stockholders, unless the action to be effected by written consent of the
stockholders and the taking of such action by written consent have been
expressly approved in advance by the Board of Directors.
Section 9. Conduct of Meetings. The date and time of the opening and
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the closing of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced at the meeting by the person presiding over the
meeting. The Board of Directors may, to the extent not prohibited by law, adopt
by resolution such rules and regulations for the conduct of the meeting of
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations as adopted by the Board of Directors, the
chairman of any meeting of stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may to the extent not
prohibited by law include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board of
Directors or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure.
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Section 10. Notice of Stockholder Business and Nominations.
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(a) Nominations of persons for election to the Board of Directors and
the proposal of business to be considered by the stockholders may be made at an
annual meeting of stockholders only (i) pursuant to the Corporation's notice of
meeting (or any supplement thereto), (ii) by or at the direction of the Board of
Directors or (iii) by any stockholder of the Corporation who was a stockholder
of record of the Corporation at the time the notice provided for in this Section
10 is delivered to the Secretary of the Corporation, who is entitled to vote at
the meeting and who complies with the notice procedures set forth in this
Section 10.
(b) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (iii) of paragraph (a) of
this Section 10, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation, and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the first anniversary of the preceding year's
annual meeting (provided, however, that in the event that the date of the annual
meeting is more than thirty (30) days before or more than seventy (70) days
after such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on the
later of the ninetieth (90th) day prior to such annual meeting or the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made by the Corporation). In no event shall the public
announcement of an adjournment or postponement of an annual meeting commence a
new time period (or extend any time period) for the giving of a stockholder's
notice as described above. Such stockholder's notice shall set forth: (i) as to
each person whom the stockholder proposes to nominate for election or reelection
as a director, all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors in an election
contest or is otherwise required, in each case pursuant to Regulation 14A under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and such
person's written consent to being named in the proxy statement as a nominee and
to serving as a director if elected; (ii) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the text of the proposal or
business (including the text of any resolutions proposed for consideration and
in the event that such business includes a proposal to amend the By-Laws, the
language of the proposed amendment), the reasons for conducting such business at
the meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; and (iii) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (a) the name and address of such
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stockholder, as they appear on the Corporation's books, and of such beneficial
owner, (b) the class and number of shares of capital stock of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, (c) a representation that the stockholder is a holder of
record of stock of the Corporation entitled to vote at such meeting and intends
to appear, in person or by proxy, at the meeting to propose such business or
nomination and (d) a representation whether the stockholder or the beneficial
owner, if any, intends or is part of a group which intends to (A) deliver a
proxy statement and/or form of proxy to holders of at least the percentage of
the Corporation's outstanding capital stock required to approve or adopt the
proposal or elect the nominee and/or (B) otherwise solicit proxies from
stockholders in support of such proposal or nomination. The Corporation may
require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to
serve as a director of the Corporation.
(c) Notwithstanding anything in the second sentence of paragraph (b)
of this Section 10 to the contrary, in the event that the number of directors to
be elected to the Board of Directors at an annual meeting is increased and there
is no public announcement by the Corporation naming all of the nominees for
director or specifying the size of the increased Board of Directors at least one
hundred (100) days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this Section 10 shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation no later than
the close of business on the tenth (10th) day following the day on which such
public announcement is first made by the Corporation.
(d) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (i)
by or at the direction of the Board of Directors or (ii) provided that the Board
of Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time
the notice provided for in this Section 10 is delivered to the Secretary of the
Corporation, who shall be entitled to vote at the meeting and upon such
election, and who complies with the notice procedures set forth in this Section
10. In the event the Corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the Board of Directors, any such
stockholder entitled to vote in such election of directors may nominate a person
or persons (as the case may be) for election to such position or positions as
specified in the Corporation's notice of meeting, if the stockholder's notice
required by paragraph (b) of this Section 10 shall be delivered to the Secretary
at the principal executive offices of the Corporation not earlier than the
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close of business on the one hundred twentieth (120th) day prior to such special
meeting and not later than the close of business on the later of the ninetieth
(90th) day prior to such special meeting, or the tenth (10th) day following the
day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at
such meeting. In no event shall the public announcement of an adjournment or
postponement of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholder's notice as described above.
(e) Only such persons who are nominated in accordance with the procedures
set forth in this Section 10 shall be eligible to be elected at an annual or
special meeting of stockholders of the Corporation to serve as directors and
only such business shall be conducted at a meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Section 10. Except as otherwise provided by law or the Restated Certificate
of Incorporation, the chairman of the meeting shall have the power and duty to
(i) determine whether a nomination or any business proposed to be brought before
the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 10 and (ii) if any proposed nomination or
business is not in compliance with this Section 10 (including whether the
stockholder or beneficial owner, if any, on whose behalf the nomination or
proposal is made solicits (or is part of a group which solicits), or fails to so
solicit (as the case may be), proxies in support of such stockholder's proposal
in compliance with such stockholder's representation as required by clause
(iii)(d) of paragraph (b) of this Section 10, to declare that such defective
nomination shall be disregarded or that such proposed business shall not be
transacted.
(f) For purposes of this Section 10, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(g) Notwithstanding the foregoing provisions of this Section 10, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rule and regulations thereunder with respect to the matters set
forth in this Section 10. Nothing in this Section 10 shall be deemed to affect
any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. Number and Qualification. The authorized number of
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directors that shall constitute the full Board of Directors of the Corporation
shall be fixed from time to time as provided in the Restated Certificate of
Incorporation. Directors need not be stockholders of the Corporation.
Section 2. Powers. The business and affairs of the Corporation shall
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be carried on by or under the direction of the Board of Directors, which shall
have all the powers authorized by the laws of the State of Delaware, subject to
such limitations as may be provided by the Restated Certificate of Incorporation
or these By-Laws. Except as otherwise expressly provided herein or in the
Restated Certificate of Incorporation, the vote of the majority of directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
The Chairman of the Board, when present, shall preside at all meetings
of the stockholders and of the Board of Directors.
Section 3. Compensation. The Board of Directors may from time to
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time by resolution authorize the payment of fees or other compensation to the
directors for services as such to the Corporation, including, but not limited
to, fees for attendance at all meetings of the Board or of the executive or
other committees, and determine the amount of such fees and compensation.
Nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor in amounts authorized or otherwise approved from time to time by the
Board.
Section 4. Meetings and Quorum. Meetings of the Board of Directors
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may be held either in or outside of the State of Delaware. At all meetings of
the Board, a majority of the then authorized number of directors shall
constitute a quorum. If a quorum shall not be present at any meeting of the
Board 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.
The first meeting of the Board of Directors after the election of a
new class of directors shall be held immediately after the annual meeting of
stockholders and at the same place, and no 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. In the event such meeting is not
held at such time and place, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all the directors.
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Regular meetings of the Board of Directors may be held without notice
at such time and at such place as shall from time to time be determined by the
Board. Notice of special meetings shall be given to each director on 24 hours
notice to each director, either personally, by mail, telegram, facsimile,
personal delivery or similar means. Special meetings may be called by the
president or the Chairman of the Board of Directors and shall be called by the
president or secretary in the manner and on the notice set forth above upon the
written request of a majority of the total number of directors which the
Corporation would have if there were no vacancies.
Notice of any meeting shall state the time and place of such meeting,
but need not state the purposes thereof unless otherwise required by the laws of
the State of Delaware, the Restated Certificate of Incorporation, these By-Laws
or the Board of Directors.
Section 5. Executive Committee. The Board of Directors may designate
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an Executive Committee to exercise, subject to applicable provisions of law, all
the powers of the Board in the management of the business and affairs of the
Corporation when the Board is not in session, including without limitation the
power to declare dividends and to authorize the issuance of the Corporation's
capital stock, and may, by resolution similarly adopted, designate one or more
other committees, including such committees specified in Section 6 of this
Article III. The Executive Committee shall consist of two or more directors of
the Corporation. The Board may designate one or more directors as alternate
members of the Executive Committee, who may replace any absent member at any
meeting of the Executive Committee. The members of the Executive Committee
present at any meeting, whether or not constituting a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any
such absent member. The Executive Committee shall keep written minutes of its
proceedings and shall report such proceedings to the Board when required.
A majority of the Executive Committee may determine its action and fix
the time and place of its meetings, unless the Board shall otherwise provide.
Notice of such meetings shall be given to each member of the Executive Committee
in the manner provided for in Section 4 of this Article III. The Board shall
have power at any time to fill vacancies in, to change the membership of, or to
dissolve the Executive Committee.
Section 6. Other Committees.
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(a) The Board may appoint the following standing committees, the
members of which shall serve at the pleasure of the Board: a Nominating
Committee, a Compensation Committee and an Audit Committee. The Board may
appoint such other committees among the directors of the Corporation as it deems
necessary and appropriate for the proper conduct of the Corporation's business
and
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may appoint such officers, agents or employees of the Corporation to assist the
committees of the Board as it deems necessary and appropriate. Meetings of
committees may be called by the chairman of the committee on 24 hours notice to
each committee member, either personally, by mail, telegram, facsimile or
similar means and shall be called by the chairman of the committee in like
manner and on like notice on the written request of a committee member. Each
committee shall keep regular minutes of its meetings and report the same to the
Board of Directors when required.
(b) One or more directors of the Corporation shall be appointed to
act as a Nominating Committee. The Nominating Committee shall be responsible for
proposing to the Board nominees for election as directors and shall possess and
may exercise such additional powers and authority as may be delegated to it by
the Board from time to time. The Nominating Committee shall report its actions
to the Board at the next meeting of the Board following such actions. Vacancies
in the membership of the Nominating Committee shall be filled by the Board of
Directors.
(c) One or more directors of the Corporation shall be appointed to
act as a Compensation Committee, each of whom shall be directors who are not
also officers or employees of the Corporation or its subsidiaries or any other
individual having a relationship which, in the opinion of the Board of
Directors, would interfere with the exercise of independent judgment in carrying
out the responsibilities of a director (each such director, an "Unaffiliated
Director"). The Compensation Committee shall be responsible for establishing
salaries, bonuses and other compensation for the executive officers of the
Corporation and for administering the Corporation's benefit plans, and shall
possess and may exercise such additional powers and authority as may be
delegated to it by the Board from time to time. The Compensation Committee shall
report its actions to the Board at the next meeting of the Board following such
actions. Vacancies in the membership of the Compensation Committee shall be
filled by the Board of Directors.
(d) One or more Unaffiliated Directors of the Corporation shall be
appointed to act as an Audit Committee. The Audit Committee shall have general
oversight responsibility with respect to the Corporation's financial reporting.
In performing its oversight responsibility, the Audit Committee shall make
recommendations to the Board of Directors as to the selection, retention, or
change in the independent accountants of the Corporation, review with the
independent accountants the scope of their examination and other matters
(relating to both audit and non-audit activities), and review generally the
internal auditing procedures of the Corporation. In undertaking the foregoing
responsibilities, the Audit Committee shall have unrestricted access, if
necessary, to personnel of the Corporation and documents and shall be provided
with the resources and assistance necessary to discharge its responsibilities,
including periodic reports from management assessing the impact of regulation,
accounting, and reporting of other significant matters that may affect the
Corporation. The Audit Committee shall
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review the financial reporting and adequacy of internal controls of the
Corporation, consult with the internal auditors and certified public
accountants, and from time to time, but not less than annually, report to the
Board. Vacancies in the membership of the Audit Committee shall be filled by the
Board of Directors.
Section 7. Conference Telephone Meetings. Any one or more members of
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the Board of Directors or any committee thereof may participate in meetings by
means of a conference telephone or similar communications equipment and such
participation in a meeting shall constitute presence in person at the meeting.
Section 8. Action Without Meetings. Any action required or permitted
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to be taken at any meeting of the Board of Directors or any committee thereof
may be taken by unanimous written consent without a meeting to the extent and in
the manner authorized by the laws of the State of Delaware.
ARTICLE IV
OFFICERS
Section 1. Titles and Election. The officers of the Corporation
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shall be the president, a secretary and a treasurer, who shall initially be
elected as soon as convenient by the Board of Directors and thereafter, in the
absence of earlier resignations or removals, shall be elected at the first
meeting of the Board following the annual meeting of stockholders. Each officer
shall hold office at the pleasure of the Board except as may otherwise be
approved by the Board, or until such officer's earlier resignation, removal
under these By-Laws or other termination of employment. Any person may hold more
than one office if the duties can be consistently performed by the same person,
to the extent permitted by the laws of the State of Delaware.
The Board of Directors, in its discretion, may also at any time elect
or appoint a Chairman of the Board of Directors, who shall be a director, and
one or more vice presidents, assistant secretaries and assistant treasurers and
such other officers as it may deem advisable, each of whom shall hold office at
the pleasure of the Board, except as may otherwise be approved by the Board, or
until such officer's earlier resignation, removal or other termination of
employment, and shall have such authority and shall perform such duties as shall
be prescribed or determined from time to time by the Board or, if not so
prescribed or determined by the Board, as the chief executive officer or the
then senior executive officer may prescribe or determine. The Board of Directors
may require any officer or other employee or agent to give bond for the faithful
performance of duties in such form and with such sureties as the Board may
require.
Section 2. Duties. Subject to such extension, limitations, and other
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provisions as the Board of Directors or these By-Laws may from time to time
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prescribe or determine, the following officers shall have the following powers
and duties:
(a) President. The president shall be charged with general
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supervision of the management and policy of the Corporation, and shall have such
other powers and perform such other duties as the Board of Directors may
prescribe from time to time. The president shall be the chief executive officer
of the Corporation, shall exercise the powers and authority and perform all of
the duties commonly incident to such office and shall perform such other duties
as chief executive officer as the Board of Directors shall specify from time to
time. The president shall, in the absence at a meeting of stockholders of the
Corporation or of the Board, or because of the inability to act, of the Chairman
of the Board, perform all duties of the Chairman of the Board and preside at all
meetings of the stockholders and of the Board of Directors, if he is a director.
(b) Vice President. The vice president or vice presidents shall
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perform such duties as may be assigned to them from time to time by the Board of
Directors or by the president if the Board does not do so. In the absence or
disability of the president, the vice presidents in order of seniority may,
unless otherwise determined by the Board, exercise the powers and perform the
duties pertaining to the office of president, except that if one or more
executive vice presidents has been elected or appointed, the person holding such
office in order of seniority shall exercise the powers and perform the duties of
the office of president.
(c) Secretary. The secretary, or in the secretary's absence, an
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assistant secretary shall keep the minutes of all meetings of stockholders and
of the Board of Directors, give and serve all notices, attend to such
correspondence as may be assigned to such officer, keep in safe custody the seal
of the Corporation, and affix such seal to all such instruments properly
executed as may require it, and shall have such other duties and powers as may
be prescribed or determined from time to time by the Board of Directors or by
the president if the Board does not do so.
(d) Treasurer. The treasurer, subject to the order of the Board of
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Directors, shall have the care and custody of the moneys, funds, valuable papers
and documents of the Corporation (other than such officer's own bond, if any,
which shall be in the custody of the president), and shall have, under the
supervision of the Board of Directors, all the powers and duties commonly
incident to such office. The treasurer shall deposit all funds of the
Corporation in such bank or banks, trust company or trust companies, or with
such firm or firms doing a banking business as may be designated by the Board of
Directors or by the president if the Board does not do so. The treasurer may
endorse for deposit or collection all checks, notes and similar instruments
payable to the Corporation or to its order. The treasurer shall keep accurate
books of account of the Corporation's transactions, which shall be the property
of the Corporation and, together with all of the property of the Corporation
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in such officer's possession, shall be subject at all times to the inspection
and control of the Board of Directors. The treasurer shall be subject in every
way to the order of the Board of Directors, and shall render to the Board of
Directors and/or the president of the Corporation, whenever they may require it,
an account of all transactions and of the financial condition of the
Corporation. In addition to the foregoing, the treasurer shall have such duties
as may be prescribed or determined from time to time by the Board of Directors
or by the president if the Board does not do so.
(e) Delegation of Authority. The Board of Directors may at any time
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delegate the powers and duties of any officer for the time being to any other
officer, director or employee.
ARTICLE V
RESIGNATIONS AND VACANCIES
Section 1. Resignations. Any director or officer may resign at any
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time by giving written notice thereof to the Board of Directors, the president
or the secretary. Any such resignation shall take effect at the time specified
therein or, if the time be not specified, upon receipt thereof; and unless
otherwise specified therein, the acceptance of any resignation shall not be
necessary to make it effective.
Section 2. Vacancies.
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(a) Directors. Except for the rights of the holders of any series of
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preferred stock to elect additional directors, newly created directorships
resulting from any increase in the authorized number of directors and any
vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal, or other cause shall be filled only by the
affirmative vote of a majority of the remaining directors then in office, even
though less than a quorum of the Board of Directors. Any director elected in
accordance with the preceding sentence shall hold office for the remainder of
the full term of the class of directors in which the new directorship was
created or in which the vacancy occurred and until such director's successor is
duly elected and has been qualified. The directors also may reduce the
authorized number of directors by the number of vacancies on the Board. No
decrease in the number of directors constituting the Board of Directors shall
shorten the term of any incumbent director.
(b) Officers. The Board of Directors may at any time or from time to
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time fill any vacancy among the officers of the Corporation.
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ARTICLE VI
CAPITAL STOCK
Section 1. Certificate of Stock. Every stockholder shall be entitled
--------------------
to a certificate or certificates for shares of the capital stock of the
Corporation in such form as may be prescribed or authorized by the Board of
Directors, duly numbered and setting forth the number and kind of shares
represented thereby. Such certificates shall be signed by the Chairman of the
Board, the president or a vice president and by the treasurer or an assistant
treasurer or by the secretary or an assistant secretary. Any or all of such
signatures may be in facsimile if and to the extent authorized under the laws of
the State of Delaware.
In case any officer, transfer agent or registrar who has signed or
whose facsimile signature has been placed on a certificate has ceased to be such
officer, transfer agent or registrar before the certificate has been issued,
such certificate may nevertheless be issued and delivered by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue.
Section 2. Transfer of Stock. Shares of the capital stock of the
-----------------
Corporation shall be transferable only upon the books of the Corporation upon
the surrender of the certificate or certificates properly assigned and endorsed
for transfer. If the Corporation has a transfer agent or agents or transfer
clerk and registrar of transfers acting on its behalf, the signature of any
officer or representative thereof may be in facsimile.
The Board of Directors may appoint a transfer agent and one or more
co-transfer agents and a registrar and one or more co-registrars of transfer and
may make or authorize the transfer agents to make all such rules and regulations
deemed expedient concerning the issue, transfer and registration of shares of
stock.
Section 3. Record Dates.
------------
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix in advance a record date
which, in the case of a meeting, shall not be less than ten (10) nor more than
sixty (60) days prior to the scheduled date of such meeting and which, in the
case of any other action, shall be not more than the maximum or less than the
minimum number of days prior to any such action permitted by the laws of the
State of Delaware.
(b) If no such record date is fixed by the Board, the record date
shall be that prescribed by the laws of the State of Delaware.
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(c) A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
Section 4. Lost Certificates. In case of loss or mutilation or
-----------------
destruction of a stock certificate, a duplicate certificate may be issued upon
such terms as may be determined or authorized by the Board of Directors or by
the president if the Board does not do so.
ARTICLE VII
FISCAL YEAR, BANK DEPOSITS, CHECK, ETC.
Section 1. Fiscal Year. The fiscal year of the Corporation shall
-----------
commence or end at such time as the Board of Directors may designate.
Section 2. Bank Deposits, Checks, etc. The funds of the Corporation
--------------------------
shall be deposited in the name of the Corporation or of any division thereof in
such banks or trust companies in the United States or elsewhere as may be
designated from time to time by the Board of Directors, or by such officer or
officers as the Board may authorize to make such designations.
All checks, drafts or other orders for the withdrawal of funds from
any bank account shall be signed by such person or persons as may be designated
from time to time by the Board of Directors. The signatures on checks, drafts or
other orders for the withdrawal of funds may be in facsimile if authorized in
the designation.
ARTICLE VIII
BOOKS AND RECORDS
Section 1. Place of Keeping Books. Unless otherwise expressly
----------------------
required by the laws of the State of Delaware, the books and records of the
Corporation may be kept outside of the State of Delaware.
Section 2. Examination of Books. Except as may otherwise be provided
--------------------
by the laws of the State of Delaware, the Restated Certificate of Incorporation
or these By-Laws, the Board of Directors shall have power to determine from time
to time whether and to what extent and at what times and places and under what
conditions any of the accounts, records and books of the Corporation are to be
open to the inspection of any stockholder. No stockholder shall have any right
to inspect any account or book or document of the Corporation except as
prescribed by the laws of the State of Delaware or authorized by express
resolution of the Board of Directors.
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ARTICLE IX
NOTICES
Section 1. Requirements of Notice. Whenever notice is required to be
----------------------
given by the laws of the State of Delaware, the Restated Certificate of
Incorporation or these By-Laws, it shall not mean personal notice unless so
specified, but such notice may be given in writing by depositing the same in a
post office, letter box, or mail chute postpaid and addressed to the person to
whom such notice is directed at the address of such person on the records of the
Corporation, and such notice shall be deemed given at the time when the same
shall be thus mailed.
Section 2. Waivers. Any stockholder, director or officer may, in
-------
writing or by telegram or cable, at any time waive any notice or other formality
required by statute, the Restated Certificate of Incorporation or these By-Laws.
Such waiver of notice, whether given before or after any meeting or action,
shall be deemed equivalent to notice. Presence of a stockholder either in
person or by proxy at any stockholders meeting and presence of any director at
any meeting of the Board of Directors shall constitute a waiver of such notice
as may be required by any statute, the Restated Certificate of Incorporation or
these By-Laws.
ARTICLE X
SEAL
The corporate seal of the Corporation shall consist of two concentric
circles between which shall be the name of the Corporation and the date of its
incorporation, and in the center of which shall be inscribed "Corporate Seal,
Delaware."
ARTICLE XI
POWERS OF ATTORNEY
The Board of Directors may authorize one or more of the officers of
the Corporation to execute powers of attorney delegating to named
representatives or agents power to represent or act on behalf of the
Corporation, with or without power of substitution.
In the absence of any action by the Board, the president, any vice
president, the secretary or the treasurer of the Corporation may execute for and
on behalf of the Corporation waivers of notice of stockholders meetings and
proxies for such meetings in any company in which the Corporation may hold
voting securities.
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ARTICLE XII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. Definitions. As used in this article, the term "person"
-----------
means any past, present or future director or officer of the Corporation or any
subsidiary or operating division thereof.
Section 2. Indemnification Granted. The Corporation shall indemnify,
-----------------------
to the full extent and under the circumstances permitted by the General
Corporation Law of the State of Delaware in effect from time to time, any person
as defined above, made or threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that such person is or
was a director or officer of the Corporation or a subsidiary or operating
division thereof, or is or was serving at the specific request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, against costs,
charges, expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person or on such
person's behalf in connection with such action, suit or proceeding and any
appeal therefrom, if such person acted in good faith and in a manner he or she
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 that his or her 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 or she 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 such conduct was unlawful.
Section 3. Requirements for Indemnification Relating to an Action or
---------------------------------------------------------
Suit by or in the Right of the Corporation. The Corporation shall indemnify any
- ------------------------------------------
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such
person is or was a director or officer of the Corporation, or a subsidiary
thereof or a designated officer of an operating division of the Corporation, or
is or was serving at the specific request of the Corporation as a director or
officer of another corporation, partnership, joint venture, trust or other
enterprise, or by reason of any action alleged to have been taken or omitted in
such capacity, against costs, charges and expenses (including attorneys' fees)
actually and reasonably incurred by such person or on such person's behalf in
connection with the defense or settlement of such action or suit and any appeal
therefrom, if such person acted in good faith and in a manner that such person
reasonably believed to be in or not opposed to the best interest of the
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Corporation 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 Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such costs, charges and expenses which the
Court of Chancery or such other court shall deem proper.
Section 4. Success on Merits of Any Action. Notwithstanding any
-------------------------------
other provision of this Article XII, to the extent that a director or officer of
the Corporation or any subsidiary or operating division thereof has been
successful on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, in defense of any action, suit or
proceeding referred to in this Article XII, or in defense of any claim, issue or
matter therein, such person shall be indemnified against all costs, charges and
expenses (including attorneys' fees) actually and reasonably incurred by such
person or on such person's behalf in connection therewith.
Section 5. Determination of Standard of Conduct. Any indemnification
------------------------------------
under Sections 2 and 3 of this Article XII (unless ordered by a court) shall be
paid by the Corporation only after a determination has been made (1) by the
directors who were not parties to such action, suit or proceeding, or (2) if
such 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, that indemnification of the director or officer is proper
in the circumstances of the specific case because such person has met the
applicable standard of conduct set forth in Sections 2 and 3 of this Article
XII.
Section 6. Advance Payment; Representation by Corporation. Costs,
----------------------------------------------
charges and expenses (including attorneys' fees) incurred by a person referred
to in Sections 2 and 3 of this Article XII in defending a civil or criminal
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding; provided, however, that
the payment of such costs, charges and expenses incurred by a director or
officer in such capacity as officer or director (and not in any other capacity
and which service was or is rendered by such person while a director or officer)
in advance of the final disposition of such action, suit or proceeding shall be
made only upon receipt of an undertaking by or on behalf of the director or
officer to repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be indemnified by
the Corporation as authorized in this Article XII. Such costs, charges and
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. The
Corporation may, in the manner set forth above, and upon approval of such
director or officer, authorize the Corporation's counsel to represent such
person, in any
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action, suit or proceeding, whether or not the Corporation is a party to such
action, suit or proceeding.
Section 7. Procedure for Obtaining Indemnity. Any indemnification
---------------------------------
under Sections 2, 3 and 4, or advance of costs, charges and expenses under
Section 6, of this Article XII shall be made promptly, and in any event within
sixty (60) days, of the written notice of the director or officer. The right to
indemnification or advances as granted by this Article XII shall be enforceable
by the director or officer in any court of competent jurisdiction if the
Corporation denies such request, in whole or in part, or if no disposition
thereof is made within sixty (60) days. Such person's costs and expenses
incurred in connection with successfully establishing a right to indemnification
or advancement of expenses, in whole or in part, in any action shall also be
indemnified by the Corporation. It shall be a defense to any such action (other
than an action brought to enforce a claim for the advance of costs, charges and
expenses under Section 6 of this Article XII where the required undertaking, if
any, has been received by the Corporation) that the claimant has not met the
standard of conduct set forth in Section 2 or 3 of this Article XII, but the
burden of proving such defense shall be on the Corporation. Neither failure of
the Corporation (including its Board of Directors, its independent legal
counsel, and its stockholders) to have made a determination that indemnification
of the claimant is proper in the circumstances because such person has met the
applicable standard of conduct set forth in Section 2 or 3 of this Article XII,
nor the fact that there has been an actual determination by the Corporation
(including its directors, its independent legal counsel and its stockholders)
that the claimant has not met such applicable standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
applicable standard of conduct.
Section 8. Indemnification Not Exclusive. This right of
-----------------------------
indemnification shall not be deemed exclusive of any other rights to which a
person indemnified herein may be entitled by law, agreement, vote of
stockholders or disinterested directors or otherwise, and shall continue as to a
person who has ceased to be a director, officer, designated officer, employee or
agent and shall inure to the benefit of the heirs, executors, administrators and
other legal representatives of such person. It is not intended that the
provisions of this Article XII be applicable to, and they are not to be
construed as granting indemnity with respect to, matters as to which
indemnification would be in contravention of the laws of Delaware or of the
United States of America, whether as a matter of public policy or pursuant to
statutory provision.
Section 9. Invalidity of Certain Provisions. If this Article XII or
--------------------------------
any portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each director,
officer, employee and agent of the Corporation or any subsidiary or operating
division thereof as to costs, charges and expenses (including attorneys' fees),
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judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including any action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article XII that shall not have been
invalidated and to the full extent permitted by applicable law.
Section 10. Miscellaneous. The Board of Directors may also on behalf
-------------
of the Corporation grant indemnification to any individual other than a person
defined herein to such extent and in such manner as the Board in its sole
discretion may from time to time and at any time determine.
ARTICLE XIII
AMENDMENTS
These By-Laws may be altered, amended or repealed, and new By-Laws may
be made, by the affirmative vote of a majority of the directors then in office.
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