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Exhibit 3.2(b)
AMENDED AND RESTATED
BY-LAWS
OF
GLOBAL POWER EQUIPMENT GROUP INC.
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. (a) An annual meeting of the
stockholders shall be held each year for the purpose of electing directors and
conducting such other business as may lawfully come before the meeting. The
date, time and place (within or outside Delaware) of the annual meeting shall be
determined by resolution of the Board of Directors.
(b) At an annual meeting of the 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 or (C) otherwise properly brought
before the meeting by a stockholder. For business to be properly brought before
an annual meeting by a stockholder, (i) the stockholder must have given timely
notice thereof in writing to an Assistant Secretary of the Corporation, (ii)
such business must be a proper matter for stockholder action under the Delaware
General Corporation Law ("DGCL"), (iii) if the stockholder, or the beneficial
owner on whose behalf any such proposal or nomination is made, has provided the
Corporation with a Solicitation Notice (as defined in this Section 1(b)), such
stockholder or beneficial owner must, in the case of a proposal, have delivered
a proxy statement and form of proxy to holders of at least the percentage of the
Corporation's voting shares required under applicable law to carry any such
proposal, or, in the case of a nomination or nominations, have delivered a proxy
statement and form of proxy to holders of a percentage of the Corporation's
voting shares reasonably believed by such stockholder or beneficial owner to be
sufficient to elect the nominee or nominees proposed to be nominated by such
stockholder, and must, in either case, have included in such materials the
Solicitation Notice, and (iv) if no Solicitation Notice relating thereto has
been timely provided pursuant to this section, the stockholder or beneficial
owner proposing such business or nomination must not have solicited a number of
proxies sufficient to have required the delivery of such a Solicitation Notice
under this Section 1. To be timely, a stockholder's notice shall be delivered to
an Assistant Secretary of the Corporation at the principal executive offices of
the Corporation not later than the close of business on the ninetieth (90th) day
and not 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
advanced more than
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thirty (30) days prior to or delayed by more than thirty (30) days after the
anniversary of the preceding year's annual meeting, notice by the stockholder,
to be timely, must be so delivered not later than the later of the close of
business on the ninetieth (90th) day prior to such annual meeting and the tenth
(10th) day following the day on which public announcement of the date of such
meeting is first made, and not earlier than the close of business on the one
hundred twentieth (120th) day prior to such annual meeting. In no event shall
the public announcement of an adjournment of an annual meeting commence a new
time period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth: (A) as to each person whom the stockholder
proposed 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 "1934 Act") and Rule 14a-11 thereunder (including
such person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected); (B) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (C) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (i) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner, (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, and (iii) whether either such stockholder or beneficial owner
intends to deliver a proxy statement and form of proxy to holders of, in the
case of the proposal, at least the percentage of the Corporation's voting shares
required under applicable law to carry the proposal or, in the case of a
nomination or nominations, a sufficient number of holders of the Corporation's
voting shares to elect such nominee or nominees (an affirmative statement of
such intent, a "Solicitation Notice").
(c) Notwithstanding anything in the third sentence of Section
1(b) of these By-Laws to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Corporation
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 1 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 an Assistant
Secretary of the Corporation at the principal executive offices of the
Corporation not 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 persons who are nominated in accordance with the
procedures set forth in this Section 1 shall be eligible to serve as directors
and only such business shall be conducted at an annual meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this Section 1. Except as otherwise provided by law, the Chairman
of the meeting shall have the power and duty to determine whether a nomination
or any business proposed to be brought before the meeting was made, or proposed,
as the case may be, in accordance with the procedures set forth in these By-Laws
and, if any proposed nomination
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or business is not in compliance with these By-Laws, to declare that such
proposal or nomination shall not be presented for stockholder action at the
meeting and shall be disregarded.
(e) Notwithstanding the foregoing provisions of this Section 1,
in order to include information with respect to a stockholder proposal in the
proxy statement and form of proxy for a stockholder's meeting, stockholders must
provide notice as required by the regulations promulgated under the 1934 Act.
Nothing in these By-Laws shall be deemed to affect any rights of stockholders to
request inclusion of proposals in the Corporation proxy statement pursuant to
Rule 14a-8 under the 1934 Act.
(f) For purposes of this Section 1, "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
Section 13, 14 or 15(d) of the 1934 Act.
Section 2. Special Meetings. (a) Special meetings of the
stockholders may be called by the Board of Directors and shall be called by the
President of the Corporation or by an Assistant Secretary of the Corporation
upon the written request of the holders of record of at least thirty-five per
cent (35%) of the shares of stock of the Corporation, issued and outstanding and
entitled to vote, at such times and at such place either within or without the
State of Delaware as may be stated in the call or in a waiver of notice thereof.
(b) If a special meeting is properly called by any person or
persons other than the Board of Directors, the request shall be in writing,
specifying the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the President of the Corporation. No business
may be transacted at such special meeting otherwise than specified in such
notice. The Board of Directors shall determine the time and place of such
special meeting, which shall be held not less than thirty-five (35) days and not
more than one hundred twenty (120) days after the date of the receipt of the
request. Upon determination of the time and place of the meeting, the officer
receiving the request shall cause notice to be given to the stockholders
entitled to vote, in accordance with the provisions of Section 3 of these
By-Laws. If the notice is not given within one hundred (100) days after the
receipt of the request, the person or persons properly requesting the meeting
may set the time and place of the meeting and give the notice. Nothing contained
in this paragraph (b) shall be construed as limiting, fixing or affecting the
time when a meeting of stockholders called by action of the Board of Directors
may be held.
(c) 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) by any stockholder of the
Corporation who is a stockholder of record at the time of giving notice provided
for in these By-Laws who shall be entitled to vote at the meeting and who
complies with the notice procedures set forth in this Section 2(c). In the event
the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's
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notice required by Section 1(b) of these By-Laws shall be delivered to an
Assistant Secretary of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the later of the ninetieth
(90th) day prior to such special meeting and 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, and not earlier than the close of business on the later of the one
hundred twentieth (120th) day prior to such meeting. In no event shall the
public announcement of an adjournment of a special meeting commence a new time
period for the giving of a stockholder's notice as described above.
Section 3. Notice of Meetings. Notice of the time, place and
purpose of every meeting of stockholders shall be delivered personally or mailed
not less than ten (10) days nor more than sixty (60) days previous thereto to
each stockholder of record entitled to vote, at such stock-holder's post office
address appearing upon the records of the Corporation or at such other address
as shall be furnished in writing by him or her to the Corporation for such
purpose. Such further notice shall be given as may be required by law or by
these By-Laws.
Section 4. Quorum. The holders of record of at least a majority
of the shares of the stock of the Corporation, issued and outstanding and
entitled to vote, present in person or by proxy, shall, except as otherwise
provided by law, by the Certificate of Incorporation or by these By-Laws,
constitute a quorum at all meetings of the stockholders. If there be no such
quorum, the holders of a majority of such shares so present or represented may
adjourn the meeting from time to time until a quorum shall have been obtained. A
quorum, once established, shall not be broken by the withdrawal of enough votes
to leave less than a quorum and the votes present may continue to transact
business until adjournment.
Section 5. Organization of Meetings. Meetings of the
stockholders shall be presided over by the Chairman of the Board of Directors of
the Corporation or, if the Chairman of the Board is not present by the President
of the Corporation, or if the President of the Corporation is not present, by a
chairman to be chosen at the meeting. An Assistant Secretary of Corporation
shall act as secretary of the meeting.
Section 6. Voting. At the meeting of stockholders, each
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
executed by such stockholder and bearing a date not more than one (1) year prior
to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with an Assistant Secretary of the Corporation at the
beginning of each meeting in order to be counted in any vote at the meeting. At
each meeting of stockholders, except as otherwise provided by law or the
Certificate of Incorporation, every holder of record of stock entitled to vote
shall be entitled to one vote in person or by proxy for each share of such stock
standing in his or her name on the records of the Corporation. Elections of
directors shall be determined by a plurality of the votes cast and, except as
otherwise provided by law, the Certificate of Incorporation, or these By-Laws,
all other action shall be determined by a majority of the votes cast at such
meeting. Each proxy to vote shall be in writing and signed by the stockholder or
by such stockholder's duly authorized attorney.
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At all elections of directors, the voting shall be by ballot or
in such other manner as may be determined by the stockholders present in person
or by proxy entitled to vote at such election. With respect to any other matter
presented to the stockholders for their consideration at a meeting, any
stockholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the stockholders entitled to vote at each
such meeting, arranged in alphabetical order, with the address of each, and the
number of shares registered in the name of each stockholder, shall be prepared
by an Assistant Secretary of the Corporation and shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 7. Inspectors of Election. The Board of Directors in
advance of any meeting of stockholders may appoint one or more Inspectors of
Election to act at the meeting or any adjournment thereof. If Inspectors of
Election are not so appointed, the chairman of the meeting may, and on the
request of any stockholder entitled to vote shall, appoint one or more
Inspectors of Election. Each Inspector of Election, before entering upon the
discharge of his duties, shall take and sign an oath faithfully to execute the
duties of Inspector of Election at such meeting with strict impartiality and
according to the best of his or her ability. If appointed, Inspectors of
Election shall take charge of the polls and, when the vote is completed, shall
make a certificate of the result of the vote taken and of such other facts as
may be required by law.
Section 8. Action by Consent. (a) Any action required or
permitted to be taken at any meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if, prior to such action, a
written consent or consents thereto, setting forth such action, is signed by the
holders of record of shares of the stock of the Corporation, issued and
outstanding and entitled to vote thereon, having not less than the minimum
number of votes that would be required by law, the Certificate of Incorporation
of these By-laws to authorize or take such action at a meeting at which all
shares entitled to vote thereon were present and voted.
(b) Notwithstanding the foregoing, no such action by written
consent may be taken following the closing of the initial public offering
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "1933 Act"), covering the offer and sale of Common Stock
of the Corporation (the "Initial Public Offering").
ARTICLE II
DIRECTORS
Section 1. Number, Quorum, Term, Vacancies, Removal. The Board
of Directors of the Corporation shall consist of a minimum of three (3)
directors. The number of directors shall be fixed or changed by a resolution
passed by a majority of the members of the Board of Directors. The number of
directors which shall constitute the initial board shall be seven. The
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directors need not be stockholders. Following the closing of the Initial Public
Offering, the directors shall be divided into three classes designated as Class
I, Class II and Class III, respectively. Directors shall be assigned to each
class in accordance with a resolution or resolutions adopted by the Board of
Directors as constituted immediately prior to the Initial Public Offering. At
the first annual meeting of stockholders following the closing of the Initial
Public Offering, the term of office of the Class I directors shall expire and
Class I directors shall be elected for a term ending at the third annual meeting
succeeding such first annual meeting. At the second annual meeting of
stockholders following the Initial Public Offering, the term of office of the
Class II directors shall expire and Class II directors shall be elected for a
term ending at the third annual meeting succeeding such second annual meeting.
At the third annual meeting of stockholders following the Initial Public
Offering, the term of office of the Class III directors shall expire and Class
III directors shall be elected for a full term ending at the third annual
meeting succeeding such third annual meeting. At each succeeding annual meeting
of stockholders, directors shall be elected for a term ending at the third
annual meeting succeeding such annual meeting to succeed the directors of the
class whose terms expire at such annual meeting.
Notwithstanding any other provisions of these By-laws or the
Certificate of Incorporation (and notwithstanding the fact that some lesser
percentage may be specified by law or by these By-laws), the affirmative vote of
the holders of sixty-six and two thirds percent (66-2/3%) or more of the
outstanding shares of capital stock of the Corporation entitled to vote on any
amendment, alteration, change or repeal the first paragraph of this Section
!(considered for this purpose as one class) shall be required to so amend,
alter, change or repeal the preceeding paragraph of this Section 1.
Anything herein to the contrary notwithstanding, the first
paragraph of this Section 1 shall apply only to directors elected by holders of
Common Stock together with holders of all other classes of the Corporation's
capital stock voting as a single class therewith on the election of directors.
If holders of any class of the Corporation's capital stock have the right to
elect directors voting as a separate class and such right be then in effect, the
maximum number of directors of the Corporation shall be increased by the number
of directors which such holders may so elect and upon termination of such right
the number shall be reduced to the extent it was previously so increased.
A majority of the members of the Board of Directors then holding
office shall constitute a quorum for the transaction of business, but if at any
meeting of the Board of Directors there shall be less than a quorum present, a
majority of those present may adjourn the meeting from time to time until a
quorum shall have been obtained. The vote of a majority of the directors present
at any meting at which there is a quorum shall be the act of the Board of
Directors, except as otherwise specifically provided by law, by the Certificate
of Incorporation or by these By-Laws
Notwithstanding the foregoing provisions of this section, each
director shall serve until his successor is duly elected and qualified or until
his death, resignation or removal. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any incumbent
director.
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Unless otherwise provided in the Certificate of Incorporation,
any vacancies on the Board of Directors resulting from death, resignation,
disqualification, removal or other causes and any newly created directorships
resulting from any increase in the number of directors shall, unless the Board
of Directors determines by resolution that any such vacancies or newly created
directorships shall be filled by stockholders and except as otherwise provided
by law, be filled only by the affirmative vote of a majority of the 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 director for which the vacancy was
recreated or occurred and until such director's successor shall have been
elected and qualified.
Any director may resign at any time by delivering his written
resignation to an Assistant Secretary of the Corporation, such resignation to
specify whether it will be effective at a particular time, upon receipt by such
Assistant Secretary of the Corporation or at the pleasure of the Board of
Directors. If no such specification is made, it shall be deemed effective at the
pleasure of the Board of Directors. When one or more directors shall resign from
the Board of Directors, effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when such resignation
or resignations shall become effective, and each Director so chosen shall hold
office for the unexpired portion of the term of the Director whose place shall
be vacated and until his successor shall have been duly elected and qualified.
The Board of Directors or any individual director may be removed
from office as provided in Section 141(k) of the DGCL.
Section 2. Meetings, Notice. Meetings of the Board of Directors
shall be held at such place either within or without the State of Delaware, as
may from time to time be fixed by resolution of the Board of Directors, or as
may be specified in the call or in a waiver of notice thereof. Regular meetings
of the Board of Directors shall be held at such times as may from time to time
be fixed by resolution of the Board of Directors, and special meetings may be
held at any time upon the call of two directors, the Chairman of the Board of
Directors, if one be elected, or the President of the Corporation, by oral or
written notice, duly served on or sent or mailed to each director not less than
two days before such meeting. A meeting of the Board of Directors may be held
without notice immediately after the annual meeting of stockholders at the same
place at which such meeting was held. Notice need not be given of regular
meetings of the Board of Directors. Any meeting may be held without notice, if
all directors are present, or if notice is waived in writing, either before or
after the meeting, by those not present.
Section 3. Committees. The Board of Directors may, in its
discretion, by resolution passed by a majority of the whole Board, designate
from among its members one or more committees which shall consist of one or more
directors. The Board may designate one or more directors as alternate members of
any such committee, who may replace any absent or disqualified member at any
meeting of the committee. Such committees shall have and may exercise such
powers as shall be conferred or authorized by the resolution appointing them;
but no such committee shall have the power or authority in reference to amending
the Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or
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resolutions providing for the issuance of shares of stock adopted by the Board
of Directors, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other series of the same or any
other class or classes of stock of the Corporation or fix the number of shares
of any series of stock or authorize the increase or decrease of the shares of
any series), adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, recommending to the stockholders a
dissolution of the Corporation or a revocation of a dissolution, or amending
these By-laws; and, unless the resolution, these By-laws, or the Certificate of
Incorporation expressly so provides, no such committee shall have the power or
authority to declare a dividend, to authorize the issuance of stock, or to adopt
a Certificate of Ownership and Merger. A majority of any such committee may
determine its action and fix the time and place of its meetings, unless the
Board of Directors shall otherwise provide. The Board shall have power at any
time to change the membership of any such committee, to fill vacancies in it, or
to dissolve it.
Section 4. Action by Consent. Any action required or permitted
to be taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting, if prior to such action a written
consent or consents thereto is signed by all members of the Board, or of such
committee as the case may be, and such written consent or consents is filed with
the minutes of proceedings of the Board or committee.
Section 5. Compensation. The Board of Directors may determine,
from time to time, the amount of compensation which shall be paid to its
members. The Board of Directors shall also have power, in its discretion, to
allow a fixed sum and expenses for attendance at each regular or special meeting
of the Board, or of any committee of the Board. In addition, the Board of
Directors shall also have power, in its discretion, to provide for and pay to
directors rendering services to the Corporation not ordinarily rendered by
directors, as such, special compensation appropriate to the value of such
services, as determined by the Board from time to time.
Section 6. Telephone Meetings. Unless otherwise restricted by
the Certificate of Incorporation or these By-laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such meeting.
ARTICLE III
OFFICERS
Section 1. Titles and Election. The officers of the Corporation,
who shall be chosen by the Board of Directors at its first meeting after each
annual meeting of stockholders, shall be a President and Chief Executive Officer
and a Chief Financial Officer. The Board of Directors from time to time may
elect a Chairman of the Board, one or more Vice Presidents,
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Assistant Secretaries and such other officers and agents as it shall deem
necessary, and may define their powers and duties. Any number of offices may be
held by the same person.
Section 2. Terms of Office. Officers shall hold office until
their successors are chosen and qualify.
Section 3. Removal. Any officer may be removed, either with or
without cause, at any time, by the affirmative vote of a majority of the Board
of Directors.
Section 4. Resignations. Any officer may resign at any time by
giving written notice to the Board of Directors or to an Assistant Secretary of
the Corporation. Such resignation shall take effect at the time specified
therein, and, unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 5. Vacancies. If the office of any officer or agent
becomes vacant by reason of death, resignation, retirement, disqualification,
removal from office or otherwise, the directors may choose a successor, who
shall hold office for the unexpired term in respect of which such vacancy
occurred.
Section 6. Chairman of the Board. The Chairman of the Board of
Directors, if one be elected, shall preside at all meetings of the Board of
Directors and of the stockholders, and the Chairman shall have and perform such
other duties as from time to time may be assigned to the Chairman by the Board
of Directors.
Section 7. President and Chief Executive Officer. The President
shall be the Chief Executive Officer of the Corporation and, in the absence of
the Chairman of the Board of Directors, shall preside at all meetings of the
Board of Directors, and of the stockholders. The President shall exercise the
powers and perform the duties usual to the Chief Executive Officer and, subject
to the control of the Board of Directors, shall have general management and
control of the affairs and business of the Corporation; the President shall
appoint and discharge employees and agents of the Corporation (other than
officers elected by the Board of Directors) and fix their compensation; and the
President shall see that all orders and resolutions of the Board of Directors
are carried into effect. The President shall have the power to execute bonds,
mortgages and other contracts, agreements and instruments of the Corporation,
and shall do and perform such other duties as from time to time may be assigned
to the President by the Board of Directors.
Section 8. Vice Presidents. If chosen, the Vice Presidents, in
the order of their seniority, shall, in the absence or disability of the
President, exercise all of the powers and duties of the President. Such Vice
Presidents shall have the power to execute bonds, notes, mortgages and other
contracts, agreements and instruments of the Corporation, and shall do and
perform such other duties incident to the office of Vice President and as the
Board of Directors, or the President shall direct.
Section 9. Assistant Secretary. The Assistant Secretary, or any
of the Assistant Secretaries if there be more than one, shall give, or cause to
be given, notice of all meetings of the Board of Directors and the stockholders
of the Corporation and all other notices required by law
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or by these By-Laws, and in the case of his or her absence or refusal or neglect
so to do, any such notice may be given by any person thereunto directed by the
President of the Corporation, any directors of the Corporation or any
stockholder of the Corporation upon whose request the meeting is called as
provided in these By-Laws. The Assistant Secretary, or any of the Assistant
Secretaries if there be more than one, shall record all the proceedings of the
meetings of the Board of Directors, any committee thereof and the stockholders
of the Corporation in a book to be kept for that purpose. Each Assistant
Secretary shall perform any other duties as may be assigned by these By-Laws,
the Board of Directors or the President of the Corporation.
Section 10. Chief Financial Officer. The Chief Financial Officer
shall have the custody of the corporate funds and securities and shall keep full
and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys, and other valuable effects in the name
and to the credit of the Corporation, in such depositories as may be designated
by the Board of Directors. The Chief Financial Officer shall disburse the funds
of the Corporation as may be ordered by the Board, taking proper vouchers for
such disbursements, and shall render to the directors whenever they may require
it, an account of all his or her transactions as Chief Financial Officer and of
the financial condition of the Corporation.
ARTICLE IV
INDEMNIFICATION
Section 1. Actions by Others. The Corporation (1) shall, to the
fullest extent permitted by law, indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he or she is or was a director or an officer of the Corporation and
(2) except as otherwise required by Section 3 of this Article, may, to the
fullest extent permitted by law, indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he or she is or was an employee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director, officer, employee,
agent of or participant in another Corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he or she 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 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, in and of itself, create a presumption that the person did not act in
good faith and in a manner which such person reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
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Section 2. Actions by or in the Right of the Corporation. The
Corporation shall, to the fullest extent permitted by law, 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 he or she is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the Corporation as a director, officer, employee, agent of or
participant in another Corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if he or she 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 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 for negligence or misconduct in the performance of his or her duty to the
Corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery or such other
court shall deem proper.
Section 3. Successful Defense. To the extent that a person who
is or was a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 or Section 2 of this Article, or in defense
of any claim, issue or matter therein, such person shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection therewith.
Section 4. Specific Authorization. Any indemnification under
Section 1 or Section 2 of this Article (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because such person has met the applicable standard of conduct
set forth in said Sections 1 and 2. Such determination shall be made (1) by the
Board of Directors by a majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or (2) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 5. Advance of Expenses. Expenses incurred by any person
who may have a right of indemnification under this Article in defending a civil
or criminal action, suit or proceeding may be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by or on
behalf of the director, officer, employee or agent to repay such amount unless
it shall ultimately be determined that he or she is entitled to be indemnified
by the Corporation pursuant to this Article.
Section 6. Right of Indemnity Not Exclusive. The indemnification
provided by this Article shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any by-law, agreement,
vote of stockholders or disinterested directors
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or otherwise, both as to action in his or her official capacity and as to action
in another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 7. Insurance. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of or participant in another
Corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify him or her against such liability
under the provisions of this Article, Section 145 of the General Corporation Law
of the State of Delaware or otherwise.
Section 8. Invalidity of Any Provisions of This Article. The
invalidity or unenforceability of any provision of this Article shall not affect
the validity or enforceability of the remaining provisions of this Article.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock in such form
as the Board of Directors may from time to time prescribe. The certificates of
stock shall be signed by the President or a Vice President and by an Assistant
Secretary, sealed with the seal of the Corporation or a facsimile thereof, and
countersigned and registered in such manner, if any, as the Board of Directors
may by resolution prescribe. Where any such certificate is countersigned by a
transfer agent other than the Corporation or its employee, or registered by a
registrar other than the Corporation or its employee, the signature of any such
officer may be a facsimile signature. In case any officer or officers who shall
have signed, or whose facsimile signature or signatures shall have been used on,
any such certificate or certificates shall cease to be such officer or officers
of the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be adopted by the Corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or officers of the
Corporation.
Section 2. Transfer. The shares of stock of the Corporation
shall be transferred only upon the books of the Corporation by the holder
thereof in person or by his or her attorney, upon surrender to the Corporation
or the stock transfer agent of the Corporation for cancellation of certificates
for the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or the stock transfer agent of the
Corporation may reasonably require.
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Section 3. Record Dates. The Board of Directors may fix in
advance a date, not less than ten nor more than sixty days preceding the date of
any meeting of stockholders, or the date for the payment of any dividend, or the
date for the distribution or allotment of any rights, or the date when any
change, conversion or exchange of capital stock shall go into effect, as a
record date for the determination of the stockholders entitled to notice of, and
to vote at, any such meeting, or entitled to receive payment of any such
dividend, or to receive any distribution or allotment of such rights, or to
exercise the rights in respect of any such change, conversion or exchange of
capital stock, and in such case only such stockholders as shall be stockholders
of record on the date so fixed shall be entitled to such notice of, and to vote
at, such meeting, or to receive payment of such dividend, or to receive such
distribution or allotment or rights or to exercise such rights, as the case may
be, notwithstanding any transfer of any stock on the books of the Corporation
after any such record date fixed as aforesaid.
Section 4. Lost Certificates. In the event that any certificate
of stock is lost, stolen, destroyed or mutilated, the Board of Directors may
authorize the issuance of a new certificate of the same tenor and for the same
number of shares in lieu thereof. The Board may in its discretion, before the
issuance of such new certificate, require the owner of the lost, stolen,
destroyed or mutilated certificate, or the legal representative of the owner to
make an affidavit or affirmation setting forth such facts as to the loss,
destruction or mutilation as it deems necessary, and to give the Corporation a
bond in such reasonable sum as it directs to indemnify the Corporation.
ARTICLE VI
CHECKS, NOTES, ETC.
Section 1. Checks, Notes, Etc. All checks and drafts on the
Corporation's bank accounts and all bills of exchange and promissory notes, and
all acceptances, obligations and other instruments for the payment of money, may
be signed by the President, any Vice President or the Chief Financial Officer
and may also be signed by such other officer or officers, agent or agents, as
shall be thereunto authorized from time to time by the Board of Directors.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the Corporation
shall be located at 1013 Centre Road, in the City of Wilmington, County of New
Castle, in the State of Delaware and said Corporation shall be the registered
agent of this Corporation in charge thereof. The Corporation may have other
offices either within or without the State of Delaware at such places as shall
be determined from time to time by the Board of Directors or the business of the
Corporation may require.
Section 2. Fiscal Year. The fiscal year of the Corporation
shall be determined by the Board of Directors.
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Section 3. Corporate Seal. The seal of the Corporation shall
be circular in form and contain the name of the Corporation, and the year and
state of its incorporation. Such seal may be altered from time to time at the
discretion of the Board of Directors.
Section 4. Books. There shall be kept at such office of the
Corporation as the Board of Directors shall determine, within or without the
State of Delaware, correct books and records of account of all its business and
transactions, minutes of the proceedings of its stockholders, Board of Directors
and committees, and the stock book, containing the names and addresses of the
stockholders, the number of shares held by them, respectively, and the dates
when they respectively became the owners of record thereof, and in which the
transfer of stock shall be registered, and such other books and records as the
Board of Directors may from time to time determine.
Section 5. Voting of Stock. Unless otherwise specifically
authorized by the Board of Directors, all stock owned by the Corporation, other
than stock of the Corporation, shall be voted, in person or by proxy, by the
President or any Vice President of the Corporation on behalf of the Corporation.
ARTICLE VIII
AMENDMENTS
Section 1. Amendments. The vote of the holders of at least a
majority of the shares of stock of the Corporation, issued and outstanding and
entitled to vote, shall be necessary at any meeting of stockholders to amend or
repeal these By-Laws or to adopt new by-laws. These By-Laws may also be amended
or repealed, or new by-laws adopted, at any meeting of the Board of Directors by
the vote of at least a majority of the members of the Board of Directors;
provided that any by-law adopted by the Board may be amended or repealed by the
stockholders in the manner set forth above.
Any proposal by the Board of Directors to amend or repeal these
By-Laws or to adopt new by-laws shall be stated in the notice of the meeting of
the Board of Directors or in the waiver of notice thereof, as the case may be,
unless all of the directors are present at such meeting.
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