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EXHIBIT 3.2
Amended and Restated January __, 1997
BY-LAWS
OF
MSX INTERNATIONAL, INC.
ARTICLE I
Stockholders
SECTION 1. Annual Meeting. The annual meeting of the
stockholders of MSX INTERNATIONAL, INC. (the "Corporation") shall be held on
such date, at such time and at such place within or without the State of
Delaware as may be designated by the Board of Directors of the Corporation (the
"Board of Directors") or the Chairman in the absence of a designation by the
Board of Directors, for the purpose of electing Directors and for the
transaction of such other business as may be properly brought before the
meeting.
SECTION 2. Special Meetings. A special meeting of the
stockholders of the Corporation may be called at any time by the Board of
Directors and shall be called by the Chairman, the President or the Secretary at
the request in writing of stockholders holding together at least (i) ten percent
(10%) of the total number of issued and outstanding shares of the Corporation's
Class A Common Stock, par value $.01 per share, (collectively, the "Class A
Common Stock"), or (ii) for so long as any shares of the Company's Series A-1
Preferred Stock, par value $.01 per share (the "Series A-1 Preferred Stock"),
are issued and outstanding, fifty percent (50%) of the total number of shares of
Series A-1 Preferred Stock then issued and outstanding. Any special meeting of
the stockholders shall be held on such date, at such time and at such place
within or without the State of Delaware as the Board of Directors or the officer
calling the meeting may designate. At a special meeting of the stockholders, no
business shall be transacted and no corporate action shall be taken other than
that stated in the notice of the meeting unless all of the stockholders entitled
to notice are present in person or by proxy and consent thereto, in which case
any and all business may be transacted at the meeting even though the meeting is
held without notice.
SECTION 3. Notice of Meetings. Except as otherwise provided in
these By-Laws or by law, a written notice of each meeting of the stockholders
shall be given not less than ten (10) nor more than sixty (60) days before the
date of the meeting to each Stockholder entitled to vote at such meeting. The
notice shall state the place, date and hour of the meeting and, in the case of a
special meeting, the purpose or purposes for which the meeting is called.
SECTION 4. Quorum. At any meeting of the stockholders, the
holders of a majority in number of the total outstanding shares of stock of the
Corporation entitled to vote at such meeting, present in person or represented
by proxy, shall constitute a quorum of the stockholders for all purposes, unless
the representation of a larger number of shares shall be
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required by law or by the Certificate of Incorporation in which case the
representation of the number of shares so required shall constitute a quorum;
provided that at any meeting of the stockholders at which the holders of any
class or series of stock (as the case may be) of the Corporation shall be
entitled to vote separately as a class or series, the holders of a majority in
number of the total outstanding shares of such class or series, present in
person or represented by proxy, shall constitute a quorum for purposes of such
class or series vote (as the case may be) unless the representation of a larger
number of shares of such class or series shall be required by law.
SECTION 5. Adjourned Meetings. Whether or not a quorum shall
be present in person or represented at any meeting of the stockholders, the
holders of a majority in number of the shares of stock of the Corporation
present in person or represented by proxy and entitled to vote at such meeting
may adjourn from time to time; provided, however, that if the holders of any
class or series of stock (as the case may be) of the Corporation are entitled to
vote separately as a class or series upon any matter at such meeting, any
adjournment of the meeting in respect of action by such class or series upon
such matter shall be determined by the holders of a majority of the shares of
such class or series present in person or represented by proxy and entitled to
vote at such meeting. When a meeting is adjourned to another time or place,
notice need not be given of the adjourned meeting if the time and place thereof
are announced at the meeting at which the adjournment is taken. At the adjourned
meeting the stockholders, or the holders of any class or series of stock
entitled to vote separately as a class or series, as the case may be, may
transact any business which might have been transacted by them at the original
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the adjourned meeting.
SECTION 6. Organization. The Chairman or, in his absence, the
President or any Vice President shall call all regular meetings of the
stockholders to order, and shall act as Chairman of such meetings. In the
absence of the Chairman, the President, and all Vice Presidents or in the case
of any special meeting, the holders of a majority in number of votes of all
securities entitled to vote at such meeting present in person or represented by
proxy shall elect a Chairman.
The Secretary of the Corporation shall act as Secretary of all
regular meetings of the stockholders; but in the absence of the Secretary or in
the case of any special meeting, the Chairman may appoint any person to act as
Secretary of the meeting. It shall be the duty of the Secretary of the
Corporation to prepare and make, at least ten days before every meeting of
stockholders, a complete list of stockholders entitled to vote at such meeting,
arranged in alphabetical order by series and class and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open, 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,
for the ten days next preceding the meeting, to the examination of any
stockholder, for any purpose germane to the
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meeting, during ordinary business hours, and shall be produced and kept at the
time and place of the meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present.
SECTION 7. Voting. Except as otherwise provided in the
Certificate of Incorporation or by law, each stockholder shall be entitled to
one vote for each share of the capital stock of the Corporation registered in
the name of such stockholder upon the books of the Corporation. Subject to the
provisions of the Certificate of Incorporation, each stockholder entitled to
vote at a meeting of stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to
act for him by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. Except as
otherwise provided by law or by the Certificate of Incorporation, each Director
shall be elected by a plurality of the votes cast at a meeting of stockholders
by the stockholders entitled to vote in the election of such Director and,
whenever any corporate action, other than the election of Directors, is to be
taken, it shall be authorized by a majority of the votes cast at a meeting of
stockholders by the stockholders entitled to vote thereon.
Shares of the capital stock of the Corporation belonging to
the Corporation or to another corporation, if a majority of the shares entitled
to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be
counted for quorum purposes.
ARTICLE II
Board of Directors
SECTION 1. Generally, the business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. The Directors shall, except as hereinafter otherwise provided for
filling vacancies, be elected at the annual meeting of stockholders entitled to
vote for said members of the Board of Directors, and shall hold office until
their respective successors are elected and qualified or until their earlier
resignation or removal. Prior to the occurrence of a Conversion Event (as
defined in the Certificate of Incorporation), it shall be a qualification of
each member of the Board of Directors to be elected by the holders of each
series of the Class A Common Stock that such member shall have been designated
in accordance with the procedures set forth in Section 5.1(a) of the
Stockholders' Agreement (as defined below).
SECTION 2. Removal and Vacancies.
The stockholders may remove, with or without cause,
any Director and fill the vacancy thereby created; provided that whenever any
Director shall have been elected by the
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holders of any class or series of stock of the Corporation voting separately as
a class or series (as the case may be) under the provisions of the Certificate
of Incorporation (i) such Director may be removed without cause and (ii) any
vacancy resulting therefrom may be filled, in the case of both clause (i) and
clause (ii) only by the holders of that class or series voting separately as a
class or series (as the case may be). Prior to the occurrence of a Conversion
Event, the Board of Directors may not fill any vacancies on the Board of
Directors.
SECTION 3. Place of Meeting. The Board of Directors may hold
its meetings in such place or places in the State of Delaware or outside the
State of Delaware as the Board of Directors from time to time shall determine.
SECTION 4. Regular Meetings. Regular meetings of the Board of
Directors shall be held at such times and places as the Board of Directors from
time to time by resolution shall determine. No notice shall be required for any
regular meeting of the Board of Directors; but a copy of every resolution fixing
or changing the time or place of regular meetings shall be mailed to every
Director at least five days before the first meeting held in pursuance thereof.
SECTION 5. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by direction of the Chairman or by any
two of the Directors then in office. Notice of the day, hour and place of
holding of each special meeting shall be given by delivering the same at least
two days before the meeting or by causing the same to be transmitted by telefax,
telegraph, cable or wireless at least one day before the meeting to each
Director. Unless otherwise indicated in the notice thereof, any and all business
other than an amendment of these By-Laws may be transacted at any special
meeting, and an amendment of these By-Laws may be acted upon if the notice of
the meeting shall have stated that the amendment of these By-Laws is one of the
purposes of the meeting. At any meeting at which every Director shall be
present, even though without any notice, any business may be transacted,
including the amendment of these By-Laws.
SECTION 6. Quorum; Majority Board Vote.
(a) Prior to the occurrence of a Conversion Event,
Directors entitled to cast a majority of the 1,000 weighted votes of the Board
of Directors, whether or not there are vacancies on the Board of Directors at
the time of such meeting, shall constitute a quorum for the transaction of
business, if any. Upon and after the occurrence of a Conversion Event a majority
of the Directors in office shall constitute a quorum for the transaction of
business.
(b) If at any meeting of the Board of Directors
there is less than a quorum present, (i) prior to the occurrence of a Conversion
Event, Directors entitled to cast a majority of the weighted votes of the
Directors present may adjourn the meeting from time to time and (ii) upon and
after the occurrence thereof, a majority of the Directors present may adjourn
the meeting from time to time.
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(c) A Majority Board Vote taken at any meeting at
which a quorum is present shall be the act of the Board of Directors, subject to
any additional requirements as may be set forth in the Certificate of
Incorporation. As used in these By-laws, "Majority Board Vote" means (i) prior
to the occurrence of a Conversion Event, the affirmative vote of Directors on
the Board of Directors entitled to cast a majority of the 1,000 weighted votes
of the Board of Directors and (ii) upon and after the occurrence of a Conversion
Event, the affirmative vote of a majority of the Directors on the Board of
Directors then in office.
SECTION 7. Organization. Prior to the occurrence of a
Conversion Event, unless otherwise determined by Directors entitled to cast a
majority of the weighted votes of the members of the Board of Directors present
at a meeting at which a quorum is present, the Chairman shall preside at all
meetings of the Board of Directors and the Secretary shall act as Secretary of
all meetings of the Board of Directors. In the absence of the Secretary, the
Chairman may appoint any person to act as Secretary of the meeting. Upon and
after the occurrence of a Conversion Event, unless otherwise determined by a
majority of the members of the Board of Directors present at a meeting at which
a quorum is present, the Chairman shall preside at all meetings of the board of
Directors and the Secretary shall act as Secretary of all meetings of the Board
of Directors. In the absence of the Secretary, the Chairman may appoint any
person to act as Secretary of the meeting.
SECTION 8. Committees.
(a) Committees Generally. The Board of Directors
may, by Majority Board Vote, designate one or more committees, each of which,
(i) prior to the occurrence of a Conversion Event, shall consist of one (1)
Institutional Director, one (1) MascoTech Director and one (1) Disinterested
Director (as such terms are defined in the Stockholders' Agreement dated as of
January __, 1997 by and among the stockholders of the Corporation and the
Corporation (the "Stockholders' Agreement")), and (ii) from and after the
occurrence of a Conversion Event, one or more of the Directors of the
Corporation.
(b) Quorum. In the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors (so long as the
provisions of Section 8(a) are complied with) to act at the meeting in the place
of any such absent or disqualified member. Any such committee shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and the affairs of the Corporation, to the extent
provided by resolution passed by a Majority Board Vote, to the full extent
permitted by law.
SECTION 9. Conference Telephone Meetings. Unless otherwise
restricted by the Certificate of Incorporation, by these By-Laws or by
law, the 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
such committee, as the case may be, by means of conference telephone or similar
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communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation shall constitute presence in
person at such meeting.
SECTION 10. Consent of Directors or Committee in Lieu of
Meeting. Unless otherwise restricted by the Certificate of Incorporation or by
these By-Laws, 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 all members of the Board of Directors or committee, as the case may
be, consent thereto in writing and the writing or writings are filed with the
minutes of proceedings of the Board of Directors or committee, as the case may
be; provided, that prior to occurrence of a Conversion Event, no such action by
the Board of Directors or a committee may be taken without a meeting if there
are one or more vacancies on the Board of Directors or such committee.
ARTICLE III
Officers
SECTION 1. Officers. The officers of the Corporation shall be
a Chairman, a President, one or more Vice Presidents, a Secretary and a
Treasurer, and such additional officers, if any, as shall be elected by the
Board of Directors pursuant to the provisions of Section 7 of this Article III.
Except for the election of officers prior to the first annual meeting of the
stockholders, the Chairman, the President, one or more Vice Presidents, the
Secretary and the Treasurer shall be elected by the Board of Directors at its
first meeting after each annual meeting of the stockholders. The failure to hold
such election shall not of itself terminate the term of office of any officer.
All officers shall hold office at the pleasure of the Board of Directors. Any
officer may resign at any time upon written notice to the Corporation. Officers
may, but need not, be Directors. Any number of offices may be held by the same
person.
All officers, agents and employees shall be subject to
removal, with or without cause, at any time by the Board of Directors. The
removal of an officer without cause shall be without prejudice to his contract
rights, if any. The election or appointment of an officer shall not of itself
create contract rights. All agents and employees other than officers elected by
the Board of Directors shall also be subject to removal, with or without cause,
at any time by the officers appointing them.
Any vacancy caused by the death of any officer, his
resignation, his removal, or otherwise, may be filled by the Board of Directors,
and any officer so elected shall hold office at the pleasure of the Board of
Directors.
In addition to the powers and duties of the officers of the
Corporation as set forth in these By-Laws, the officers shall have such
authority and shall perform such duties as from time to time may be determined
by the Board of Directors.
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SECTION 2. Powers and Duties of the Chairman of the Board. The
Chairman of the Board shall have the responsibility of guiding the Board of
Directors in effectively discharging its responsibilities, including, but not
limited to, providing for the execution of the Corporation's objectives;
safeguarding and furthering shareholders' interests; and appraising the adequacy
of overall results as reported by the President or the Chief Operating Officer.
He shall see that all orders and resolutions of the Board of Directors are
carried into effect and shall from time to time report to the Board of Directors
on matters within his knowledge which the interests of the Corporation may
require to be brought to the attention of the Board of Directors. The Chairman
of the Board shall preside at all meetings of the Board of Directors and the
stockholders at which he is present.
SECTION 3. Powers and Duties of the President. The President
shall be the Chief Executive Officer of the Corporation. The President shall be
responsible for the management of the business, affairs and operations of the
Corporation. He may execute and deliver, in the name of the Corporation, powers
of attorney, contracts, bonds, and other obligations and instruments. The
President shall also perform all duties incident to the office of President and
such other duties as may from time to time be assigned to him by the Board of
Directors.
SECTION 4. Powers and Duties of the Vice Presidents. Each Vice
President shall have all powers and shall perform all duties incident to the
office of Vice President and shall have such other powers and perform such other
duties as may from time to time be assigned to him by these By-Laws or by the
Board of Directors, the Chairman or the President. A Vice President may be
designated by the Board of Directors as the Chief Operating Officer of the
Corporation.
SECTION 5. Powers and Duties of the Secretary. The Secretary
shall keep the minutes of all meetings of the Board of Directors and the minutes
of all meetings of the stockholders in books provided for that purpose; he shall
attend to the giving or serving of all notices of the Corporation; he shall have
custody of the corporate seal of the Corporation and shall affix the same to
such documents and other papers as the Board of Directors, the Chairman of the
Board or the President shall authorize and direct; he shall have charge of the
stock certificate books, transfer books and stock ledgers and such other books
and papers as the Board of Directors, the Chairman or the President shall
direct, all of which shall at all reasonable times be open to the examination of
any Director, upon application, at the office of the Corporation during business
hours; and whenever required by the Board of Directors, the Chairman or the
President shall render statements of such accounts; and he shall have all powers
and shall perform all duties incident to the office of Secretary and shall also
have such other powers and shall perform such other duties as may from time to
time be assigned to him by these By-Laws or by the Board of Directors, the
Chairman or the President.
SECTION 6. Powers and Duties of the Treasurer. The Treasurer
shall have custody of, and when proper shall pay out, disburse or otherwise
dispose of, all funds and securities of the Corporation which may have come into
his hands; he may endorse on behalf of
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the Corporation for collection checks, notes and other obligations and shall
deposit the same to the credit of the Corporation in such bank or banks or
depositary or depositaries as the Board of Directors may designate; he shall
sign all receipts and vouchers for payments made to the Corporation; he shall
enter or cause to be entered regularly in the books of the Corporation kept for
the purpose full and accurate accounts of all moneys received or paid or
otherwise disposed of by him and whenever required by the Board of Directors,
the Chairman, the President or the Chief Operating Officer shall render
statements of such accounts; he shall, at all reasonable times, exhibit his
books and accounts to any Director of the Corporation upon application at the
office of the Corporation during business hours; and he shall have all powers
and he shall perform all duties incident to the office of Treasurer and shall
also have such other powers and shall perform such other duties as may from time
to time be assigned to him by these By-Laws or by the Board of Directors, the
Chairman, the President or the Chief Operating Officer. The Board of Directors
may designate the Treasurer to be the Chief Financial Officer of the
Corporation.
SECTION 7. Additional Officers. The Board of Directors may
from time to time elect such other officers (who may but need not be Directors),
including one or more Controllers, Assistant Treasurers, Assistant Secretaries
and Assistant Controllers, as the Board may deem advisable and such officers
shall have such authority and shall perform such duties as may from time to time
be assigned to them by the Board of Directors, the Chairman or the President.
The Board of Directors may from time to time by resolution delegate to any
Assistant Treasurer or Assistant Treasurers any of the powers or duties herein
assigned to the Treasurer; and may similarly delegate to any Assistant Secretary
or Assistant Secretaries any of the powers or duties herein assigned to the
Secretary.
SECTION 8. Powers with respect to Ownership of Stock. Unless
otherwise ordered by the Board of Directors, the Chairman, the President or any
Vice President shall have full power and authority on behalf of the Corporation
to attend and to act and to vote, or in the name of the Corporation to execute
proxies to vote, at any meeting of stockholders of any corporation in which the
Corporation may hold stock, or to execute any consent in lieu of such a meeting,
and at any such meeting or by any such consent shall possess and may exercise,
in person or by proxy, any and all rights, powers and privileges incident to the
ownership of such stock. The Board of Directors may from time to time, by
resolution, confer like powers upon any other person or persons.
SECTION 9. Compensation of Officers. The officers of
the Corporation shall be entitled to receive such compensation for their
services as shall from time to time be determined by the Board of Directors.
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ARTICLE IV
Indemnification of Directors and Officers
SECTION 1. Nature of Indemnity. 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, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was or has agreed to become a Director or officer of the Corporation, or
is or was serving or has agreed to serve at the 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, and may indemnify any person who was or is a party or
is threatened to be made a party to such an action, suit or proceeding by reason
of the fact that he is or was or has agreed to become an employee or agent of
the Corporation, or is or was serving or has agreed to serve at the request of
the Corporation as an employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that in the case of
an action or suit by or in the right of the Corporation to procure a judgment in
its favor (1) such indemnification shall be limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in the defense
or settlement of such action or suit, and (2) 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
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.
The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
SECTION 2. Successful Defense. To the extent that a Director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
1 of this Article IV or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
SECTION 3. Determination that Indemnification is
Proper. Any indemnification of a Director or officer of the Corporation under
Section 1 of this Article IV (unless ordered by
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a court) shall be made by the Corporation unless a determination is made that
indemnification of the Director or officer is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in Section
1. Any indemnification of an employee or agent of the Corporation under Section
1 (unless ordered by a court) may be made by the Corporation upon a
determination that indemnification of the employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1. Any such determination shall be made (1) by a majority of the
weighted votes (or if there are no weighted votes, the votes) of Directors who
were not parties to such action, suit or proceeding, or (2) or, if such
Directors so direct, by independent legal counsel in a written opinion, or (3)
by the stockholders.
SECTION 4. Advance Payment of Expenses. Unless the Board of
Directors otherwise determines in a specific case, expenses incurred by a
Director or officer 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 upon receipt of an undertaking by or on behalf of the
Director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in
this Article IV. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate. The Board of Directors may authorize the Corporation's legal
counsel to represent such Director, officer, employee or agent in any action,
suit or proceeding, whether or not the Corporation is a party to such action,
suit or proceeding.
SECTION 5. Survival; Preservation of Other Rights. The
foregoing indemnification provisions shall be deemed to be a contract between
the Corporation and each Director and officer who serves in any such capacity at
any time while these provisions as well as the relevant provisions of the
Delaware General Corporation Law are in effect and any repeal or modification
thereof shall not affect any right or obligation then existing with respect to
any state of facts then or previously existing or any action, suit, or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a contract right may not be modified
retroactively without the consent of such Director, officer, employee or agent.
The indemnification provided by this Article IV shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, 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. The
Corporation may enter into an agreement with any of its Directors, officers,
employees or agents providing for indemnification and advancement of expenses,
including attorneys' fees, that may change, enhance, qualify or limit any right
to indemnification or advancement of expenses created by this Article IV.
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SECTION 6. Severability. If this Article IV or any portion
hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Director or
officer and may indemnify each employee or agent of the Corporation as to costs,
charges and expenses (including attorneys' fees), judgment, fines and amounts
paid in settlement with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, including an action by or in
the right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article IV that shall not have been invalidated and to the
fullest extent permitted by applicable law.
SECTION 7. Subrogation. In the event of payment of
indemnification to a person described in Section 1 of this Article IV, the
Corporation shall be subrogated to the extent of such payment to any right of
recovery such person may have and such person, as a condition of receiving
indemnification from the Corporation, shall execute all documents and do all
things that the Corporation may deem necessary or desirable to perfect such
right of recovery, including the execution of such documents necessary to enable
the Corporation effectively to enforce any such recovery.
SECTION 8. No Duplication of Payments. The Corporation shall
not be liable under this Article IV to make any payment in connection with any
claim made against a person described in Section 1 of this Article IV to the
extent such person has otherwise received payment (under any insurance policy,
by-law or otherwise) of the amounts otherwise payable as indemnity hereunder.
ARTICLE V
Stock-Seal-Fiscal Year
SECTION 1. Certificates For Shares of Stock. The certificates
for shares of stock of the Corporation shall be in such form, not inconsistent
with the Certificate of Incorporation, as shall be approved by the Board of
Directors. All certificates shall be signed by the Chairman or the President or
a Vice President and by the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer, and shall not be valid unless so signed. Any or all
of such signatures may be by a facsimile signature.
In case any officer or officers who shall have signed 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 issued and delivered as though
the person or persons who signed such certificate or certificates had not ceased
to be such officer or officers of the Corporation.
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All certificates for shares of stock shall be consecutively
numbered as the same are issued. The name of the person owning the shares
represented thereby with the number of such shares and the date of issue thereof
shall be entered on the books of the Corporation.
Except as hereinafter provided, all certificates surrendered
to the Corporation for transfer shall be canceled, and no new certificates shall
be issued until former certificates for the same number of shares have been
surrendered and canceled.
SECTION 2. Lost, Stolen or Destroyed Certificates. Whenever a
person owning a certificate for shares of stock of the Corporation alleges that
it has been lost, stolen or destroyed, he shall file in the office of the
Corporation an affidavit setting forth, to the best of his knowledge and belief,
the time, place and circumstances of the loss, theft or destruction, and, if
required by the Board of Directors, a bond of indemnity or other indemnification
sufficient in the opinion of the Board of Directors to indemnify the Corporation
and its agents against any claim that may be made against it or them on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of a new certificate in replacement therefor. Thereupon the Corporation
may cause to be issued to such person a new certificate in replacement for the
certificate alleged to have been lost, stolen or destroyed. Upon the stub of
every new certificate so issued shall be noted the fact of such issue and the
number, date and the name of the registered owner of the lost, stolen or
destroyed certificate in lieu of which the new certificate is issued.
SECTION 3. Transfer of Shares. Subject to the provisions of
the Stockholders' Agreement, shares of stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof, in person or
by his attorney duly authorized in writing, upon surrender and cancellation of
certificates for the number of shares of stock to be transferred, except as
provided in Section 2 of this Article IV.
SECTION 4. Regulations. The Board of Directors shall
have power and authority to make such rules and regulations as it may deem
expedient concerning the issue, transfer and registration of certificates for
shares of stock of the Corporation.
SECTION 5. Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders, or to receive payment of any dividend or other distribution or
allotment of any rights or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix a record date, which record date shall not
precede the date on which the resolution fixing the record date is adopted and
which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of any meeting of stockholders, nor more than sixty (60) days
prior to the time for such other action as hereinbefore described; provided,
however, that if no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting
of stockholders shall be at the close of business on the day next preceding the
day on which notice is given or, if notice is waived, at the close of business
on the day next preceding the day on which the meeting is held, and, for
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determining stockholders entitled to receive payment of any dividend or other
distribution or allotment of rights or to exercise any rights of change,
conversion or exchange of stock or for any other purpose, the record date shall
be at the close of business on the day on which the Board of Directors adopts a
resolution relating thereto. 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.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board of Directors, and
which record date shall be not more than ten (10) days after the date upon which
the resolution fixing the record date is adopted. If no record date has been
fixed by the Board of Directors and no prior action by the Board of Directors is
required by the Delaware General Corporation Law, the record date shall be the
first date on which a signed written consent setting forth the action taken or
proposed to be taken is delivered to the Corporation in the manner prescribed by
Article I. If no record date has been fixed by the Board of Directors and prior
action by the Board of Directors is required by the Delaware General Corporation
Law with respect to the proposed action by written consent of the stockholders,
the record date for determining stockholders entitled to consent to corporate
action in writing shall be at the close of business on the day on which the
Board of Directors adopts the resolution taking such prior action.
SECTION 6. Dividends. Subject to the provisions of the
Certificate of Incorporation, the Board of Directors shall have power to declare
and pay dividends upon shares of stock of the Corporation which dividends may be
paid either in cash, in property or shares of the capital stock of the
Corporation, but only out of funds available for the payment of dividends as
provided by law.
Subject to the provisions of the Certificate of Incorporation,
any dividends declared upon the stock of the Corporation shall be payable on
such date or dates as the Board of Directors shall determine.
SECTION 7. Corporate Seal. The Board of Directors shall
provide a suitable seal, containing the name of the Corporation, which seal
shall be kept in the custody of the Secretary. A duplicate of the seal may be
kept and be used by any officer of the Corporation designated by the Board of
Directors or the Chairman or the President.
SECTION 8. Fiscal Year. The fiscal year of the
Corporation shall be such fiscal year as the Board of Directors from time to
time by resolution shall determine.
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ARTICLE VI
Miscellaneous Provisions
SECTION 1. Checks, Notes, Etc. All checks, drafts, bills of
exchange, acceptances, notes or other obligations or orders for the payment of
money shall be signed and, if so required by the Board of Directors,
countersigned by such officers of the Corporation and/or other persons as the
Board of Directors from time to time shall designate.
Checks, drafts, bills of exchange, acceptances, notes,
obligations and orders for the payment of money made payable to the Corporation
may be endorsed for deposit to the credit of the Corporation with a duly
authorized depository by the Treasurer and/or such other officers or persons as
the Board of Directors from time to time may designate.
SECTION 2. Loans. No loans and no renewals of any loans shall
be contracted on behalf of the Corporation except as authorized by the Board of
Directors. When authorized so to do, any officer or agent of the Corporation may
effect loans and advances for the Corporation from any bank, trust company or
other institution or from any firm, corporation or individual, and for such
loans and advances may make, execute and deliver promissory notes, bonds or
other evidences of indebtedness of the Corporation. When authorized so to do,
any officer or agent of the Corporation may pledge, hypothecate or transfer, as
security for the payment of any and all loans, advances, indebtedness and
liabilities of the Corporation, any and all stocks, securities and other
personal property at any time held by the Corporation, and to that end may
endorse, assign and deliver the same. Such authority may be general or confined
to specific instances.
SECTION 3. Contracts. Except as otherwise provided in these
By-Laws or by law or as otherwise directed by the Board of Directors, each of
the Chairman, the President and the Chief Financial Officer shall be authorized
to execute and deliver, in the name and on behalf of the Corporation, all
agreements, bonds, contracts, deeds, mortgages, and other instruments, either
for the Corporation's own account or in a fiduciary or other capacity, and the
seal of the Corporation, if appropriate, shall be affixed thereto by any of such
officers or the Secretary or an Assistant Secretary. The Board of Directors, the
Chairman, the President or the Chief Financial Officer may authorize any other
officer, employee or agent to execute and deliver, in the name and on behalf of
the Corporation, agreements, bonds, contracts, deeds, mortgages, and other
instruments, either for the Corporation's own account or in a fiduciary or other
capacity, and, if appropriate, to affix the seal of the Corporation thereto. The
grant of such authority by the Board of Directors or any such officer may be
general or confined to specific instances.
SECTION 4. Waivers of Notice. Whenever any notice is required
to be given by law, by the Certificate of Incorporation, or by these By-Laws to
any person or persons, a waiver thereof in writing, signed by the person or
persons entitled to the notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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SECTION 5. Offices Outside of Delaware. Except as otherwise
required by the laws of the State of Delaware, the Corporation may have an
office or offices and keep its books, documents and papers outside of the State
of Delaware at such place or places as from time to time may be determined by
the Board of Directors or the Chairman or the President.
ARTICLE VII
Amendments
These By-Laws and any amendment thereof may be altered,
amended or repealed, or new By-Laws may be adopted, by the Board of Directors at
any regular or special meeting at which a quorum is present by Majority Board
Vote, subject to any additional requirements as may be set forth in the
Certificate of Incorporation; provided, that in the case of any special meeting
at which all of the members of the Board of Directors are not present, that the
notice of such meeting shall have stated that the amendment of these By-Laws was
one of the purposes of the meeting. These By-Laws and any amendment thereof may
be altered, amended or repealed or new By-Laws may be adopted by the holders of
seventy-five percent (75%) of the total outstanding capital stock of the
Corporation entitled to vote at any annual meeting or at any special meeting for
the election of directors; provided, in the case of any special meeting, that
notice of such proposed alteration, amendment, repeal or adoption is included in
the notice of the meeting.
[End of By-Laws]
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