1
EXHIBIT 3.2
BY-LAWS
OF
EVI WEATHERFORD, INC.
AMENDED AND RESTATED ON MAY 27, 1998
ARTICLE I
STOCKHOLDERS
1. Annual Meeting. The annual meeting of stockholders shall be
held on the second Friday in May in each year (or if that be a legal holiday in
the place where the meeting is to be held, on the next succeeding full business
day), at the principal office of the corporation at 11:00 o'clock A.M. unless a
different date, hour or place within or without the State of Delaware is fixed
by the Board of Directors or the President. The purposes for which the annual
meeting is to be held, in addition to those prescribed by law, by the
Certificate of Incorporation or by these By-Laws, may be specified by the Board
of Directors or the President.
2. Notice of Meetings. A written notice stating the place, date
and hour of all meetings of stockholders, and in the case of special meetings,
the purposes of the meeting shall be given by the Secretary (or other person
authorized by these By-Laws or by law) not less than ten nor more than sixty
days before the meeting to each stockholder entitled to vote thereat and to
each stockholder who, under the Certificate of Incorporation or under these
By-Laws is entitled to such notice, by delivering such notice to him or by
mailing it, postage prepaid, and addressed to such stockholder at his address
as it appears in the records of the corporation. Notice need not be given to a
stockholder if a written waiver of notice is executed before or after the
meeting by such stockholder, if communication with such stockholder is
unlawful, or if such stockholder attends the meeting in question, unless such
attendance was for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting was not
lawfully called or convened. If a meeting is adjourned to another time or
place, notice need not be given of the adjourned meeting if the time and place
are announced at the meeting at which the adjournment is taken, except that if
the adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
3. Quorum. The holders of a majority in interest of all stock
issued, outstanding and entitled to vote at a meeting shall constitute a
quorum. Any meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, whether or not a quorum is present.
4. Voting and Proxies. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the corporation unless otherwise provided by law or by the Certificate of
Incorporation.
2
Stockholders may vote either in person or by written proxy, but no proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. Proxies shall be filed with the Secretary of the
meeting, or of any adjournment thereof. Except as otherwise limited therein,
proxies shall entitle the persons authorized thereby to vote at any adjournment
of such meeting. A proxy purporting to be executed by or on behalf of a
stockholder shall be deemed valid unless challenged at or prior to its exercise
and the burden of proving invalidity shall rest on the challenger.
5. Action at Meeting. When a quorum is present, any matter
before the meeting shall be decided by vote of the holders of a majority of the
shares of stock voting on such matters except where a larger vote is required
by law, by the Certificate of Incorporation or by these By-Laws. Any election
by stockholders shall be determined by plurality of the votes cast, except
where a larger vote is required by law, by the Certificate of Incorporation or
by these By-Laws. No ballot shall be required for any election unless
requested by a stockholder entitled to vote in the election. The corporation
shall not directly or indirectly vote any share of its own stock; provided,
however, that the corporation may vote shares which it holds in a fiduciary
capacity to the extent permitted by law.
6. Action Without a Meeting. Any action required or permitted by
law to be taken at any annual or special meeting of stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking
of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
7. Stockholder Lists. The Secretary (or other person authorized
by these By-Laws or by law) shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, and showing the address of
each stockholder and the number of shares registered in the name of each
stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten 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.
ARTICLE II
DIRECTORS
1. Powers. The business of the corporation shall be managed by a
Board of Directors consisting of ten members, which number may be increased or
decreased from time to time by the Board of Directors, who may exercise all the
powers of the corporation except as otherwise provided by law.
-2-
3
2. Tenure. Except as otherwise provided by law, by the
Certificate of Incorporation or by these By-Laws, Directors shall hold office
until their successors are elected and qualified or until their earlier
resignation or removal. Any Director may resign by delivering his written
resignation to the corporation. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the
happening of some other event.
3. Vacancies. Any vacancy occurring in the Board of Directors
may be filled by any vote or other concurrence of the remaining directors or by
vote of the stockholders.
4. Removal. A Director may be removed from office (a) with or
without cause by vote of the holders of the majority of the shares of stock
entitled to vote in the election of Directors or (b) to the extent permitted by
law, for cause by vote of the majority of the Directors then in office. A
Director may be removed for cause only after reasonable notice and opportunity
to be heard before the body proposing to remove him.
5. Meetings. Regular meetings of the Board of Directors may be
held without notice at such time, date and place as the Board of Directors may
from time to time determine. Special meetings of the Board of Directors may be
called, orally or in writing, by three or more Directors, designating the time,
date and place thereof. Directors may participate in meetings of the Board of
Directors by means of conference telephone or similar communications equipment
by means of which all Directors participating in the meeting can hear each
other, and participation in a meeting in accordance herewith shall constitute
presence in person at such meeting.
6. Notice of Meetings. Notice of the time, date and place of all
special meetings of the Board of Directors shall be given to each Director by
the Secretary, or Assistant Secretary, or in the case of the death, absence,
incapacity or refusal of such persons, by one of the Directors calling the
meeting. Notice shall be given to each Director in person or by telephone or
by telegram sent to his business or home address at least twenty-four hours in
advance of the meeting, or by written notice mailed to his business or home at
least forty-eight hours in advance of the meeting. Notice need not be given to
any Director if a written waiver of notice is executed by him before or after
the meeting, or if communication with such Director is unlawful. A notice or
waiver of notice of a meeting of the Board of Directors need not specify the
purposes of the meeting.
7. Quorum. At any meeting of the Board of Directors, a majority
of the Directors then in office shall constitute a quorum. Less than a quorum
may adjourn any meeting from time to time and the meeting may be held as
adjourned without further notice.
8. Action at Meeting. At any meeting of the Board of Directors
at which a quorum is present, a majority of the Directors present may take any
action on behalf of the Board of Directors, unless a larger number is required
by law, by the Certificate of Incorporation or by these By-Laws.
-3-
4
9. Action by Consent. Any action required or permitted to be
taken at any meeting of the Board of Directors may be taken without a meeting
if all members of the Board of Directors may be taken without a meeting if all
members of the Board of Directors consent thereto in writing, and the writing
or writings are filed with the minutes of the Board of Directors. Such consent
shall be treated as a vote of the Board of Directors for all purposes.
10. Committees. The Board of Directors, by a majority vote of the
Directors then in office, may establish one or more committees, and may
delegate thereto some or all of its powers except those which by law, by the
Certificate of Incorporation, or by these By-Laws may not be delegated. Except
as the Board of Directors may otherwise determine, any such committee may make
rules for the conduct of its business, but in the absence of such rules its
business shall be conducted so far as possible in the same manner as is
provided in these By-Laws for the Board of Directors. All members of such
committees shall hold their committee offices at the pleasure of the Board of
Directors, and the Board may abolish any committee at any time. Each such
committee shall report its action to the Board of Directors who shall have
power to rescind any action of any committee without retroactive effect.
ARTICLE III
OFFICERS
1. Officers. The officers of the corporation shall be a Chairman
of the Board and Chief Executive Officer, a President, one or more Vice
Presidents, any one or more of which may be designated Executive Vice President
or Senior Vice President, a Secretary and a Treasurer. The Board of Directors
may appoint such other officers and agents, including Chief Financial Officer,
Controller, Assistant Vice Presidents, Assistant Secretaries, and Assistant
Treasurers, in each case as the Board of Directors shall deem necessary, who
shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined by the Board. Any two or more
offices may be held by the same person. No officer shall execute, acknowledge,
verify or countersign any instrument on behalf of the corporation in more than
one capacity, if such instrument is required by law, by these By-Laws or by any
act of the corporation to be executed, acknowledged, verified, or countersigned
by two or more officers. The Chairman of the Board shall be elected from among
the directors. With the foregoing exceptions, none of the other officers need
be a director, and none of the officers need be a stockholder of the
corporation.
2. Election and Term of Office. The officers of the corporation
shall be elected annually by the Board of Directors at its first regular
meeting held after the annual meeting of stockholders or as soon thereafter as
conveniently possible. Each officer shall hold office until his successor
shall have been chosen and shall have qualified or until his death or the
effective date of his resignation or removal, or until he shall cease to be a
director in the case of the Chairman.
3. Removal and Resignation. Any officer or agent elected or
appointed by the Board of Directors may be removed without cause by the
affirmative vote of a majority of the Board of Directors whenever, in its
judgment, the best interests of the corporation shall be served thereby, but
such removal shall be without prejudice to the contractual rights, if any, of
the person so removed. Any officer may resign at any time by giving written
notice to the corporation. Any such resignation shall take effect at the
-4-
5
date of the receipt of such notice or at any later time specified therein, and
unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective.
4. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
5. Salaries. The salaries of all officers and agents of the
corporation shall be fixed by the Board of Directors or pursuant to its
direction; and no officer shall be prevented from receiving such salary by
reason of his also being a director.
6. Chairman of the Board. The Chairman of the Board shall be the
chief executive officer of the corporation and, subject to the control of the
Board of Directors, shall in general supervise and control the business and
affairs of the corporation The Chairman shall preside at all meetings of the
Board of Directors or of the stockholders of the corporation. The Chairman
shall formulate and submit to the Board of Directors matters of general policy
for the corporation and shall perform such other duties as usually appertain to
the office or as may be prescribed by the Board of Directors. He shall have
the power to appoint and remove subordinate officers, agents and employees,
except those elected or appointed by the Board of Directors. The Chairman of
the Board shall keep the Board of Directors informed and shall consult with
them concerning the business of the corporation. He may sign with the
Secretary or any other officer of the corporation thereunto authorized by the
Board of Directors, certificates for shares of the corporation and any deeds,
bonds, mortgages, contracts, checks, notes, drafts, or other instruments that
the Board of Directors has authorized to be executed, except in cases where the
signing and execution thereof has been expressly delegated by these By-Laws or
by the Board of Directors to some other officer or agent of the corporation, or
shall be required by law to be otherwise executed. He shall vote, or give a
proxy to any other officer of the corporation to vote, all shares of stock of
any other corporation standing in the name of the corporation and in general he
shall perform all other duties normally incident to the office of Chairman and
Chief Executive Officer and such other duties as may be prescribed by the
stockholders or the Board of Directors from time to time.
7. President. The President shall be the chief operating officer
of the corporation and, subject to the powers of the Chairman and Chief
Executive Officer and the control of the Board of Directors, shall in general
supervise and control the operations of the corporation. In the absence of the
Chairman of the Board, the President shall preside at all meetings of the Board
of Directors and of the stockholders. He may also preside at any such meeting
attended by the Chairman if he is so designated by the Chairman. He shall have
the power to appoint and remove subordinate officers, agents and employees,
except those elected or appointed by the Board of Directors or by the Chairman
and Chief Executive Officer. The President shall keep the Chairman and the
Board of Directors informed and shall consult with them concerning the
operations of the corporation. He may sign with the Secretary or any other
officer of the corporation thereunto authorized by the Board of Directors,
certificates for shares of the corporation and any deeds, bonds, mortgages,
contracts, checks, notes, drafts, or other instruments that the Board of
Directors has authorized to be executed, except in cases where the signing and
execution thereof has been expressly delegated by these By-Laws or by the Board
of Directors to some other officer or agent of the corporation, or shall be
required by law to be otherwise executed. He
-5-
6
shall vote, or give a proxy to any other officer of the corporation to vote,
all shares of stock of any other corporation standing in the name of the
corporation and in general he shall perform all other duties normally incident
to his office and such other duties as may be prescribed by the stockholders or
the Board of Directors from time to time.
8. Vice Presidents. In the absence of the Chairman and the
President, or in the event of their inability or refusal to act, the Executive
Vice President (or in the event there shall be no Vice President designated
Executive Vice President, any Vice President designated by the Board) shall
perform the duties and exercise the powers of the President. Any Vice
President may sign, with the Secretary or Assistant Secretary, certificates for
shares of the corporation. The Vice Presidents shall perform such other duties
as from time to time may be assigned to them by the Chairman, the President or
the Board of Directors.
9. Secretary. The Secretary shall (a) keep the minutes of the
meetings of the stockholders, the Board of Directors and committees of
directors; (b) see that all notices are duly given in accordance with the
provisions of these By-Laws and as required by law; (c) be custodian of the
corporate records and of the seal of the corporation, and see that the seal of
the corporation or a facsimile thereof is affixed to all certificates for
shares prior to the issue thereof and to all documents, the execution of which
on behalf of the corporation under its seal is duly authorized in accordance
with the provisions of these By-Laws; (d) keep or cause to be kept a register
of the post office address of each stockholder which shall be furnished by such
stockholder; (e) sign with the President, or an Executive Vice President or
Vice President, certificates for shares of the corporation, the issue of which
shall have been authorized by resolution of the Board of Directors; (f) have
general charge of the stock transfer books of the corporation; and (g) in
general, perform all duties normally incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the Chairman,
the President or the Board of Directors.
10. Treasurer. If required by the Board of Directors, the
Treasurer shall give a bond for the faithful discharge of his duties in such
sum and with such surety or sureties as the Board of Directors shall determine.
He shall (a) have charge and custody of and be responsible for all funds and
securities of the corporation; (b) receive and give receipts for moneys due and
payable to the corporation from any source whatsoever and deposit all such
moneys in the name of the corporation in such banks, trust companies, or other
depositories as shall be selected in accordance with these By-Laws; (c)
prepare, or cause to be prepared, for submission at each regular meeting of the
Board of Directors, at each annual meeting of the stockholders, and at such
other times as may be required by the Board of Directors, the Chairman or the
President, a statement of financial condition of the corporation in such detail
as may be required; and (d) in general, perform all the duties incident to the
office of Treasurer and such other duties as from time to time may be assigned
to him by the Chairman, the President or the Board of Directors.
11. Assistant Secretary or Treasurer. The Assistant Secretaries
and Assistant Treasurers shall, in general, perform such duties as shall be
assigned to them by the Secretary or the Treasurer, respectively, or by the
Chairman, the President or the Board of Directors. The Assistant Secretaries
and Assistant Treasurers shall, in the absence of the Secretary or Treasurer,
respectively, perform all functions and duties which such absent officers may
delegate, but such delegation shall not relieve the
-6-
7
absent officer from the responsibilities and liabilities of his office. The
Assistant Secretaries may sign, with the President or a Vice President,
certificates for shares of the corporation, the issue of which shall have been
authorized by a resolution of the Board of Directors. The Assistant Treasurers
shall respectively, if required by the Board of Directors, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
Board of Directors shall determine.
12. Other Powers and Duties. Subject to these By-Laws, each
officer of the corporation shall have in addition to the duties and powers
specifically set forth in these By-Laws, such duties and powers as are
customarily incident to his office, and such duties and powers as may be
designated from time to time by the Board of Directors.
ARTICLE IV
CAPITAL STOCK
1. Certificates of Stock. Each stockholder shall be entitled to
a certificate of the capital stock of the corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall
be signed by the President or a Vice President and by the Treasurer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. Such
signatures may be facsimile if the certificate is signed by a transfer agent or
registrar, other than the corporation or its employee. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed on such certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the
corporation with the same effect as if he were such officer, transfer agent or
registrar at the time of its issue. Every certificate for shares of stock
which are subject to any restriction on transfer and every certificate issued
when the corporation is authorized to issue more than one class or series of
stock shall contain such legend with respect thereto as is required by law.
2. Transfers. Subject to any restrictions on transfer, shares of
stock may be transferred on the books of the corporation by the surrender to
the corporation of its transfer agent of the certificate therefor properly
endorsed or accompanied by a written assignment or power of attorney properly
executed, with transfer stamps (if necessary) affixed, and with such proof of
the authenticity of signature as the corporation or its transfer agent may
reasonably require.
3. Record Holders. Except as may otherwise be required by law,
by the Certificate of Incorporation or by these By-Laws, the corporation shall
be entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and
the right to vote with respect thereto, regardless of any transfer, pledge or
other disposition of such stock, until the shares have been transferred on the
books of the corporation in accordance with the requirements of these By-Laws.
It shall be the duty of each stockholder to notify the corporation of
his post office address.
-7-
8
4. Record Date. In order that the corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
In order that the corporation may determine the stockholders entitled to
receive the payment of any dividend or other distribution or any allotment of
any rights, the Board of Directors may fix in advance a record date and a
payment date therefor. In such case only stockholders of record on such record
date shall be so entitled notwithstanding any transfer of stock on the books of
the corporation after the record date.
5. Replacement of Certificates. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate
may be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
ARTICLE V
Indemnification
This corporation shall indemnify, to the fullest extent that the
General Corporation Law of the State of Delaware as it exists on the date
hereof and as it may hereafter be amended, (a) each of its present and former
officers and Directors, and (b) each of its present or former officers,
Directors, agents or employees who are serving or have served at the request of
this corporation as an officer, Director or partner (or in any similar
position) of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred in connection with
any threatened, pending or completed action, suit or proceeding, whether by or
in the right of this corporation, by a third party or otherwise, to which such
person is made a party or threatened to be made a party by reason of such
office in this corporation or in another corporation, partnership, joint
venture, trust or other enterprise.
To the fullest extent that the General Corporation Law of the State of
Delaware as it exists on the date hereof and as it may hereafter be amended,
under general or specific authority granted by the Board of Directors, (a) this
corporation may furnish such indemnification to its agents and employees with
respect to their activities on behalf of this corporation; (b) this corporation
may furnish such indemnification to each present or former officer, Director,
employee or agent of a constituent corporation absorbed in a consolidation or
merger with this corporation and to each officer, Director, agent or employee
who is or was serving at the request of such constituent corporation as an
officer, Director, agent or employee of another corporation, partnership, joint
venture, trust or other enterprise; and (c) this corporation may purchase and
maintain indemnification insurance on behalf of any of the officers, Directors,
agents or employees whom it is required or permitted to indemnify as provided
in this Article.
-8-
9
ARTICLE VI
MISCELLANEOUS PROVISIONS
1. Fiscal Year. Except as otherwise determined by the Board of
Directors, the fiscal year of the corporation shall end on December 31 of each
year.
2. Seal. The Board of Directors shall have power to adopt and
alter the seal of the corporation.
3. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
corporation in the ordinary course of its business without Director action, may
be executed on behalf of the corporation by the President or the Treasurer.
4. Voting of Securities. Unless otherwise provided by the Board
of Directors, the President or Treasurer may waive notice of and act on behalf
of this corporation, or appoint another person or persons to act as proxy or
attorney in fact for this corporation with or without discretionary power
and/or power of substitution, at any meeting of stockholders or shareholders of
any other corporation or organization, any of whose securities are held by this
corporation.
5. Resident Agent. The Board of Directors may appoint a resident
agent upon whom legal process may be served in any action or proceeding against
the corporation.
6. Corporate Records. The original or attested copies of the
Certificate of Incorporation, By-Laws and records of all meetings of the
incorporators, stockholders and the Board of Directors and the stock and
transfer records, which shall contain the names of all stockholders, their
record addresses and the amount of stock held by each, shall be kept at the
principal office of the corporation, at the office of its counsel, or at an
office of its transfer agent.
7. Certification of Incorporation. All references in these
By-Laws to the Certificate of Incorporation shall be deemed to refer to the
Certificate of Incorporation of the corporation, as amended and in effect from
time to time.
8. Amendments. These By-Laws may be amended or repealed or
additional By-Laws adopted by the stockholders or by the Board of Directors;
provided, that (a) the Board of Directors may not amend or repeal this Section
or any provision of these By-Laws which by law, by the Certificate of
Incorporation or by these By-Laws requires action by the stockholders, and (b)
any amendment or repeal of these By-Laws by the Board of Directors and any
By-Law adopted by the Board of Directors may be amended or repealed by the
stockholders.
-9-