EXHIBIT 3.32**
By-Laws
-of-
BMAC Services Co., Inc.
(herein called the "Corporation")
ARTICLE I
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STOCKHOLDERS
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Section 1.01 Annual Meeting. The Board of Directors by resolution shall
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designate the time, place and date (which shall be, in the case of the first
annual meeting, not more than 13 months after the organization of the
Corporation and, in the case of all other annual meetings, not more than 13
months after the date of the last annual meeting) of the annual meeting of the
stockholders for the election of directors and the transaction of such other
business as may come before it.
Section 1.02 Special Meetings. Special meetings of the stockholders, for
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any purpose or purposes, may be called at any time by the Chairman, the
Vice-Chairman, the President, any Vice-President, the Treasurer, the Secretary
or the Assistant Secretary, or by any three members of the Board of Directors.
Special meetings of stockholders shall be held at such place, within or without
the State of Delaware, as shall be fixed by the person or persons calling
meeting and stated in the notice or waiver of notice of the meeting.
Section 1.03 Notice of Meetings of Stockholders. Whenever stockholders are
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required or permitted to take any action at a meeting, written notice of the
meeting shall be given (unless that notice shall be waived or unless the meeting
is to be dispensed with in accordance with the provisions of the General
Corporation Law of the State of Delaware and Article SIXTH of the
Certificate of Incorporation of the Corporation) that 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. The written notice of any meeting
shall be given, personally or by mail, not less than ten nor more than sixty
days before the date of the meeting to each stockholder entitled to vote at such
meeting. If mailed, such notice is given when deposited in the United States
mail, postage prepaid, directed to the stockholder at his address as it appears
on the records of the Corporation.
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
Corporation may transact any business which might have been transacted 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 meeting.
Section 1.04 Quorum. At all meetings of the stockholders, the holders of
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one-third of the stock issued and outstanding and entitled to vote thereat,
present in person or by proxy, shall constitute a quorum for the transaction of
any business.
When a quorum is once present to organize a meeting, it is not broken by
the subsequent withdrawal of any stockholders.
The stockholders present may adjourn the meeting despite the absence of a
quorum and at any such adjourned meeting at which the requisite amount of voting
stock shall be represented, the Corporation may transact any business which
might have been transacted at the original meeting had a quorum been there
present.
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Section 1.05 Method of Voting. The vote upon any question before the
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meeting need not be by ballot. All elections and all other questions shall be
decided by a plurality of the votes cast, at a meeting at which a quorum is
present, except as expressly provided otherwise by the General Corporation Law
of the State of Delaware or the Certificate of Incorporation.
Section 1.06 Voting Rights of Stockholders and Proxies. Each stockholder of
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record entitled to vote in accordance with the laws of the State of Delaware,
the Certificate of Incorporation or these By-Laws, shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share of
stock entitled to vote standing in his name on the books of the Corporation, but
no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period.
Section 1.07 Ownership of its Own Stock. Shares of its own capital stock
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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. Nothing in this section shall be
construed as limiting the right of any corporation to vote stock, including but
not limited to its own stock, held by it in a fiduciary capacity.
Section 1.08 Voting by Fiduciaries and Pledgors. Persons holding stock in
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a fiduciary capacity shall be entitled to vote the shares so held. Persons whose
stock is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the Corporation he has expressly empowered the pledgee
to vote thereon, in which case only the pledgee, or his proxy, may represent
such stock and vote thereon.
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If shares or other securities having voting power stand of record in the
names of two or more persons, whether fiduciaries, members of a partnership,
joint tenants, tenants in common, tenants by the entirety or otherwise, or if
two or more persons have the same fiduciary relationship respecting the same
shares, unless the Secretary of the Corporation is given written notice to the
contrary and is furnished with a copy of the instrument or order appointing them
or creating the relationship wherein it is so provided, their acts with respect
to voting shall have the following effect:
(1) If only one votes, his act binds all;
(2) If more than one vote, the act of the majority so voting binds all;
(3) If more than one vote, but the vote is evenly split on any particular
matter, each faction may vote the securities in question proportionally, or any
person voting the shares, or a beneficiary, if any, may apply to the Court of
Chancery or such other court as may have jurisdiction to appoint an additional
person to act with the persons so voting the shares, which shall then be voted
as determined by a majority of such persons and the person appointed by the
Court of Chancery. If the instrument so filed shows that any such tenancy is
held in unequal interests, a majority or even-split for the purpose of this
subsection shall be a majority or even-split in interest.
Section 1.09 Fixing Date for Determination of Stockholders of Record. In
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order to determine the stockholders (i) entitled to notice of or to vote at any
meeting of stockholders or any adjournment thereof, or (ii) entitled to express
consent to corporate action in writing without a meeting, or (iii) entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or (iv) entitled to exercise any rights in respect of any change,
conversion or exchange of stock, or (v) for the purpose of any other lawful
action, the Board of Directors may
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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. If no record date is fixed by the Board of Directors, the record
date shall be determined in accordance with the provisions of the General
Corporation Law of the State of Delaware.
Section 1.10 List of Stockholders. The officer who has charge of the stock
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ledger of the Corporation shall prepare and make, at least ten days before every
meeting of the 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 said meeting is to be
held), and the list shall 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 may be present. Upon the willful neglect or refusal of the directors to
produce such a list at any meeting for the election of directors, they shall be
ineligible for election to any office at such meeting.
Section 1.11 Stockholder's Right of Inspection. Stockholders of record
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shall have the right, upon written demand under oath stating the purpose
thereof, during the usual hours for business to inspect, in person or by
attorney or other agent, for any proper purpose the Corporation's stock ledger,
a list of its stockholders, and its other books and records, and to make copies
or extracts therefrom. A proper purpose shall mean a purpose reasonably related
to such person's interest as a stockholder. In every instance where an attorney
or other agent shall
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be the person who seeks the right to inspection, the demand under oath shall be
accompanied by a power of attorney or such other writing which authorizes the
attorney or other agent to so act on behalf of the stockholder. The demand under
oath shall be directed to the Corporation at its registered office in this State
of Delaware or at its principal place of business.
The stock ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, the list required by Section 1.10 or the
books of the Corporation, or to vote in person or by proxy at any meeting of the
stockholders.
ARTICLE II
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DIRECTORS
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Section 2.01 Management of Business. The business of Corporation shall be
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managed by its Board of Directors. The Board of Directors, in addition to the
powers and authority expressly conferred upon it herein, by statute, by the
Certificate of Incorporation of the Corporation or otherwise, is hereby
empowered to exercise all such powers as may be exercised by the Corporation,
except as expressly provided otherwise by the statutes of the State of Delaware,
by the Certificate of Incorporation of the Corporation or by these By-Laws.
Without prejudice to the generality of the foregoing, the Board of
Directors, by resolution or resolutions, may create and issue, whether or not in
connection with the issue and sale of any shares of stock or other securities of
the Corporation, rights or options entitling the holders thereof to purchase
from the Corporation any shares of its capital stock of any class or classes or
any other securities of the Corporation, such rights or options to be evidenced
by or in such instrument or instruments as shall be approved by the Board of
Directors. The terms upon which, including the time or times, which may be
limited or unlimited in duration, at or within which, and the price or prices at
which, any such rights or options may be issued and any such
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shares or other securities may be purchased from the Corporation upon the
exercise of any such right or option shall be such as shall be fixed and stated
in the resolution or resolutions adopted by the Board of Directors providing for
the creation and issue of such rights or options and, in every case, set forth
or incorporated by reference in the instrument or instruments evidencing such
rights or options. In the absence of actual fraud in the transaction, the
judgment of the directors as to the consideration for the issuance of such
rights or options and the sufficiency thereof shall be conclusive. In case the
shares of stock of the Corporation to be isued upon the exercise of such rights
or options shall be shares having a par value, the price or prices so to be
received therefor shall not be less than the par value thereof. In case the
shares of stock so to be issued shall be shares of stock without par value, the
consideration therefor shall be determined in the manner provided in Section 153
of the General Corporation Law of the State of Delaware.
Section 2.02 Qualifications and Number of Directors. Directors need not be
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stockholders. The number of directors which shall constitute the whole Board
shall be not less than three nor more than nine, and the number of directors
which shall initially constitute the whole Board shall be three. Such number may
be increased or decreased and subsequently again from time to time increased or
decreased by an amendment to these By-Laws.
Section 2.03 Election and Term. The directors shall be elected at the
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annual meeting of the stockholders, and each director shall be elected to hold
office until his successor shall be elected and qualified, or until his earlier
resignation or removal.
Section 2.04 Resignations and Removal. Any director of the Corporation may
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resign at any time by giving written notice to the Corporation. Such resignation
shall take effect at the time specified therein, if any, or if no time is
specified therein, then upon receipt of such notice
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by the Corporation; and, unless otherwise provided therein, the acceptance of
such resignation shall not be necessary to make it effective. Any director may
be removed with or without cause by vote of the Corporation's stockholders.
Section 2.05 Vacancies and Newly Created Directorships. Vacancies and newly
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created directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, though
less than a quorum, or by a sole remaining director, [in each case consistent
with the terms and conditions of the Stockholders Agreement,] and the directors
so chosen shall hold office until their successors shall be elected and
qualified, until their earlier resignation or removal. When one or more
directors shall resign from the Board, effective at a future date, a majority of
the directors then in office, including those who have so resigned, shall have
the 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 as herein provided in the filling of other
vacancies.
Section 2.06 Quorum of Directors. At all meetings of the Board of
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Directors, a majority of the entire Board, [which majority shall include at
least one Institutional Director (as defined in the Stockholders Agreement) and
at least one director which is not an Institutional Director,] shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as provided in Section 2.05 hereof.
A majority of the directors present, whether or not a quorum is present,
may adjourn any meeting of the directors to another time and place. Notice of
any adjournment need not be given if such time and place are announced at the
meeting.
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Section 2.07 Annual Meeting. The newly elected Board of Directors shall
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meet immediately following the adjournment of the annual meeting of stockholders
in each year at the same place, within or without the State of Delaware, and no
notice of such meeting shall be necessary.
Section 2.08 Regular Meetings. Regular meetings of Board of Directors may
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be held at such time and place, within or without the State of Delaware, as
shall from time to time be fixed by the Board and no notice thereof shall be
necessary.
Section 2.09 Special Meetings. Special meetings may be called at any time
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by the Chairman or by any two members of the Board of Directors. Special
meetings shall be held at such place, within or without the State of Delaware,
as shall be fixed by the person or persons calling the meeting and stated in the
notice or waiver of notice of the meeting.
Special meetings of the Board of Directors shall be held upon notice to the
directors or waiver thereof.
Unless waived, notice of each special meeting of the directors, stating the
time and place of the meeting, shall be given to each director by delivered
letter, by telegram or by personal communication either over the telephone or
otherwise, in each such case not later than the second day prior to the meeting,
or by mailed letter deposited in the United States mail with postage thereon
prepaid not later than the seventh day prior to the meeting. Notices of special
meetings of the Board of Directors and waivers thereof need not state the
purpose or purposes of the meeting.
Section 2.10 Action Without a Meeting. Any action required or permitted to
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be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a
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meeting if all members of the Board or committee, as the case may be, consent
thereto in a writing or writings and the writing or writings are filed with the
minutes of proceedings of the Board or such committee.
Section 2.11 Telephonic Meetings. With respect to any meeting of the Board
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of Directors or any committee thereof, any director may participate in such
meeting 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 the
meeting.
Section 2.12 Compensation. Directors shall receive such fixed sums and
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expenses of attendance for attendance at each meeting of the Board or of any
committee and/or such salary as may be determined from time to time by the Board
of Directors; provided that nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor.
ARTICLE III
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OFFICERS
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Section 3.01 Number. The officers of the Corporation shall be chosen by the
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Board of Directors. The officers shall be Chairman, a Vice-Chairman, a
President, a Secretary and a Treasurer, and such number of Vice-Presidents,
Assistant Secretaries and Assistant Treasurers, and such other officers, if any,
as the Board may from time to time determine. The Board may choose such other
agents as it shall deem necessary. Any number of offices may be held by the same
person.
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Section 3.02 Terms of Office. Each officer shall hold his office Until his
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successor is chosen and qualified or until his earlier resignation or removal.
Any officer may resign at any time upon written notice to the Corporation.
Section 3.03 Removal. Any officer may be removed from office at any time by
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the Board of Directors with or without cause.
Section 3.04 Authority. The Secretary shall record all of the proceedings
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of the meetings of the stockholders and directors in a book to be kept for that
purpose, and shall have the authority, perform the duties and exercise the
powers in the management of the Corporation usually incident to the office held
by him, and/or such other authority, duties and powers as may be assigned to him
from time to time by the Board of Directors, the Chairman, the Vice Chairman or
the President. The other officers, and agents, if any, shall have the authority,
perform the duties and exercise the powers in the management of the Corporation
usually incident to the offices held by them, respectively, and/or such other
authority, duties and powers as may be assigned to them from time to time by the
Board of Directors or (except in the case or the Chairman, the Vice-Chairman or
the President, as appropriate) by the Chairman, the Vice Chairman or the
President.
Section 3.05 Voting Securities Owned by the Corporation. Powers of
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attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chairman, the Vice-Chairman, the
President or any Vice-President and any such officer may, in the name of and on
behalf of the Corporation, take all such action as any such officer may deem
advisable to vote in person or by proxy at any meeting of security holders of
any corporation in which the
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Corporation may own securities and at any such meeting shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
ARTICLE IV
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CAPITAL STOCK
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Section 4.01 Stock Certificates. Every holder of stock in the Corporation
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shall be entitled to have a certificate signed by, or in the name of the
Corporation by, the Chairman or Vice-Chairman of the Board of Directors, or the
President or a Vice-President, and by the Treasurer or an Assistant Treasurer,
or the Secretary or an Assistant Secretary, of the Corporation, certifying the
number of shares owned by him in the Corporation. Where such certificate is
signed (1) by a transfer agent other than the Corporation or its employee, or
(2) by a registrar other than the Corporation or its employee, the signatures of
the officers of the Corporation may be facsimiles. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer before such certificate is issued, it may be
issued by the Corporation with the same effect as if he were such officer at the
date of issue.
Section 4.02 Transfers. Stock of the Corporation shall be transferable in
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the manner prescribed by the laws of the State of Delaware.
Section 4.03 Registered Holders. Prior to due presentment for registration
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of transfer of any security of the Corporation in registered form, the
Corporation shall treat the registered owner as the person exclusively entitled
to vote, to receive notifications and to otherwise
exercise all the rights and powers of an owner and shall not be bound to
recognize any equitable or other claim to, or interest in, any security, whether
or not the Corporation shall have notice thereof, except as otherwise provided
by the laws of the State of Delaware.
Section 4.04 New Certificates. The Corporation shall issue a new
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certificate of stock in the place of any certificate theretofore issued by it
alleged to have been lost, stolen or destroyed if the owner: (1) so requests
before the Corporation has invoice that the share or shares of stock represented
by that certificate have been acquired by a bona fide purchaser; (2) files with
the Corporation a bond sufficient (in the judgment of the directors) to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss or theft of that certificate or the issuance of a
new certificate; and (3) satisfies any other requirements imposed by the
directors that are reasonable under the circumstances. A new certificate may be
issued without requiring any bond when, in the judgment of the directors, it is
proper so to do.
ARTICLE V
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INDEMNIFICATION
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Section 5.01 The Corporation shall indemnify its officers, directors,
employees and agents to the fullest extent permitted by the General Corporation
Law of Delaware and Article SEVENTH of the Certificate of Incorporation of the
Corporation.
ARTICLE VI
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MISCELLANEOUS
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Section 6.01 Offices. The registered office of the Corporation in the State
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of Delaware shall be at Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801. The Corporation may also have offices at other
places within and/or without the State of Delaware.
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Section 6.02 Seal. The corporate seal shall have inscribed thereon the name
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of the Corporation, the year of its incorporation and the words "Corporate Seal
Delaware."
Section 6.03 Checks. All checks or demands for money shall be signed by
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such person or persons as the Board of Directors may from time to time
determine.
Section 6.04 Fiscal Year. The fiscal year shall begin on January 1 and end
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on December 31 of each year.
Section 6.05 Waivers of Notice; Dispensing with Notice. Whenever any notice
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whatsoever is required to be given under the provisions of the General
Corporation Law of the State of Delaware, the Certificate of Incorporation of
the Corporation, or these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
Attendance of a person at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Whenever any notice whatsoever is required to be given under the provisions
of the General Corporation Law of the State of Delaware, the Certificate of
Incorporation of the Corporation, or these By-Laws, to any person with whom
communication is made unlawful by any law of the United States of America, or by
any rule, regulation, proclamation or executive order issued under any such law,
then the giving of such notice to such person shall not be
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required and there shall be no duty to apply to any governmental authority or
agency for a license or permit to give such notice to such person; and any
action or meeting which shall be taken or held without notice to any such person
or without giving or without applying for a license or permit to give any such
notice to any such person with whom communication is made unlawful as aforesaid,
shall have the same force and effect as if such notice had been given as
provided under the provisions of the General Corporation Law of the State of
Delaware, the Certificate of Incorporation of the Corporation or these By-Laws.
In the event that the action taken by the Corporation is such as to require the
filing of a certificate under any of the other sections of this title, the
certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
Section 6.06 Loans to and Guarantees of Obligations Employees and Officers.
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The Corporation may lend money to or guaranty any obligation of, or otherwise
assist any officer or other employee of the Corporation or of a subsidiary,
including any officer or employee who is a director of the Corporation or a
subsidiary, whenever, in the judgment of the Board of Directors, such loan,
guaranty or assistance may reasonably be expected to benefit the Corporation.
The loan, guaranty or other assistance may be with or without interest, and may
be unsecured, or secured in such manner as the Board of Directors shall approve,
including, without limitation, a pledge of shares of stock of the Corporation.
Nothing contained in this Section shall be deemed to deny, limit or restrict the
powers of guaranty or warranty of the Corporation at common law or under any
other statute.
Section 6.07 Amendment of By-Laws. These By-Laws may be altered, amended or
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repealed at any meeting of the Board of Directors.
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Section 6.08 Committees. The Board of Directors may, by resolution passed
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by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. Any committee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and may exercise all the
powers and authority of the Board of Directors in the management of the business
and affairs of the Corporation. Each committee shall keep regular minutes and
report to the Board of Directors when required.
Section 6.09 Section Headings. The headings of the Articles and Sections of
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these By-Laws have been inserted for convenience of reference only and shall not
be deemed to be a part of these By-Laws.
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