EXHIBIT 3.2
BY-LAWS
OF
HOWMET INTERNATIONAL INC.
As of December 15, 1997
TABLE OF CONTENTS
Page
ARTICLE I - OFFICES.......................................................... 1
Section 1. Registered Office............................................ 1
Section 2. Other Offices................................................ 1
ARTICLE II - MEETINGS OF STOCKHOLDERS........................................ 1
Section 1. Place of Meetings............................................ 1
Section 2. Annual Meeting of Stockholders............................... 1
Section 3. Quorum; Adjourned Meetings and Notice Thereof................ 1
Section 4. Voting....................................................... 2
Section 5. Proxies...................................................... 2
Section 6. Special Meetings............................................. 2
Section 7. Notice of Stockholder's Meetings............................. 2
Section 8. Notice of Stockholder Business and Nominations............... 3
Section 9. Maintenance and Inspection of Stockholder List............... 5
Section 10. Stockholder Action by Written Consent........................ 6
ARTICLE III - DIRECTORS...................................................... 6
Section 1. Number of Directors.......................................... 6
Section 2. Vacancies.................................................... 6
Section 3. Powers....................................................... 6
Section 4. Place of Directors' Meetings................................. 7
Section 5. Regular Meetings............................................. 7
Section 6. Special Meetings............................................. 7
Section 7. Quorum....................................................... 7
Section 8. Action Without Meeting....................................... 7
Section 9. Telephonic Meetings.......................................... 7
Section 10. Committees of Directors...................................... 8
Section 11. Compensation................................................. 8
ARTICLE IV - OFFICERS........................................................ 9
Section 1. Officers..................................................... 9
Section 2. Election of Officers......................................... 9
Section 3. Subordinate Officers......................................... 9
Section 4. Compensation of Officers..................................... 9
Section 5. Term of Office; Removal and Vacancies........................ 9
Section 6. Chairman of the Board........................................ 9
Section 7. President.................................................... 9
Section 8. Vice Presidents..............................................10
i
Section 9. Secretary....................................................10
Section 10. Assistant Secretaries........................................11
Section 11. Treasurer....................................................11
Section 12. Assistant Treasurer..........................................11
ARTICLE V - CERTIFICATES OF STOCK............................................11
Section 1. Certificates.................................................11
Section 2. Signatures on Certificates...................................11
Section 3. Statement of Stock Rights, Preferences, Privileges...........12
Section 4. Lost Certificates............................................12
Section 5. Transfer of Stock............................................12
Section 6. Fixing Record Date...........................................13
Section 7. Registered Stockholders......................................13
ARTICLE VI - INDEMNIFICATION.................................................13
Section 1. Actions by Others............................................13
Section 2. Actions by or in the Right of the Corporation................14
Section 3. Successful Defense...........................................14
Section 4. Right to Indemnification.....................................15
Section 5. Specific Authorization.......................................15
Section 6. Suit Against Corporation.....................................15
Section 7. Corporation Bound............................................16
Section 8. Preclusion...................................................16
Section 9. Right of Indemnity Not Exclusive.............................16
Section 10. Insurance....................................................17
Section 11. Invalidity of any Provisions of this Article.................17
Section 12. Definitions..................................................17
Section 13. Notice.......................................................19
ARTICLE VII - GENERAL PROVISIONS.............................................20
Section 1. Dividends....................................................20
Section 2. Funds Available for Contingencies............................20
Section 3. Checks.......................................................20
Section 4. Fiscal Year..................................................20
Section 5. Corporate Seal...............................................20
Section 6. Manner of Giving Notice......................................20
Section 7. Waiver of Notice.............................................21
Section 8. Annual Statement.............................................21
ARTICLE VIII - AMENDMENTS....................................................21
Section 1. Amendment by Directors or Stockholders.......................21
ii
ARTICLE I
OFFICES
-------
Section 1. Registered Office. The address of the registered office of
-----------------
the Corporation in the State of Delaware is The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801. The
name of its registered agent at such address is The Corporation Trust Company.
Section 2. Other Offices. The Corporation may also have offices at
-------------
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
------------------------
Section 1. Place of Meetings. Meetings of stockholders shall be held
-----------------
at any place within or outside the State of Delaware designated by the Board of
Directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal executive office of the Corporation.
Section 2. Annual Meeting of Stockholders. The annual meeting of
------------------------------
stockholders shall be held each year on a date and a time designated by the
Board of Directors. At each annual meeting directors shall be elected and any
other proper business may be transacted.
Section 3. Quorum; Adjourned Meetings and Notice Thereof. A majority
---------------------------------------------
of the stock issued and outstanding and entitled to vote at any meeting of
stockholders, the holders of which are present in person or represented by
proxy, shall constitute a quorum for the transaction of business except as
otherwise provided by law, by the Certificate of Incorporation, or by these By-
Laws. A quorum, once established, shall not be broken by the withdrawal of
enough votes to leave less than a quorum and the votes present may continue to
transact business until adjournment. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the Chairman of a
meeting or a majority of the voting stock represented in person or by proxy may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the ad
1
journed meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote thereat.
Section 4. Voting. When a quorum is present at any meeting, the vote
------
of the holders of a majority of the stock having voting power present in person
or represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes, or
the Certificate of Incorporation, or these By-Laws, a different vote is
required, in which case such express provision shall govern and control the
decision of such question.
Section 5. Proxies. At each meeting of the stockholders, each
-------
stockholder having the right to vote may vote in person or may authorize another
person or persons to act for him by proxy appointed by an instrument in writing
subscribed by such stockholder and bearing a date not more than three years
prior to said meeting, unless said instrument provides for a longer period. All
proxies must be filed with the Secretary of the Corporation at the beginning of
each meeting in order to be counted in any vote at the meeting. Each stockholder
shall have one vote for each share of stock having voting power (unless a
different number of votes is specified in the Certificate of Incorporation with
respect to the class or series of stock represented by such share), registered
in his name on the books of the Corporation on the record date set by the Board
of Directors as provided in Article V, Section 6 hereof. All elections shall be
had and all questions decided by a plurality vote.
Section 6. Special Meetings. Special meetings of the stockholders,
----------------
for any purpose, or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation, may be called only by the Chairman of the Board of
Directors or by the Board of Directors pursuant to a resolution adopted by a
majority of the total number of directors which the Corporation would have if
there were no vacancies. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 7. Notice of Stockholder's Meetings. Whenever stockholders
--------------------------------
are required or permitted to take any action at a meeting, a written notice of
the meeting shall be given which 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. The written notice of any meeting shall be given to
each stockholder entitled to vote at such meeting not less than ten nor more
than sixty days before the date of the meeting. If mailed, 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.
2
Section 8. Notice of Stockholder Business and Nominations. (A) Annual
---------------------------------------------- ------
Meeting of Stockholders. (1) Nominations of persons for election to the Board of
- -----------------------
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (a) pursuant
to the Corporation's notice of meeting, (b) by or at the direction of the Board
of Directors or (c) by any stockholder of the Corporation who was a stockholder
of record at the time of giving of notice provided for in this Section 8, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 8.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 8, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation and such other business must
otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on the
60th day nor earlier than the close of business on the 90th day prior to the
first anniversary of the preceding year's annual meeting; provided, however,
that in the event that the date of the annual meeting is more than 30 days
before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of such
meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder proposes to
nominate for election or reelection as a director all information relating to
such person that is required to be disclosed in solicitations of proxies for
election of directors in an election contest, or is otherwise required, in each
case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Rule 14a-11 thereunder (including such person's
written consent to being named in the proxy statement as a nominee and to
serving as a director if elected); (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (c) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the
3
nomination or proposal is made (i) the name and address of such stockholder, as
they appear on the Corporation's books, and of such beneficial owner and (ii)
the class and number of shares of the Corporation which are owned beneficially
and of record by such stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 8 to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is
increased and there is no public announcement by the Corporation naming all of
the nominees for director or specifying the size of the increased Board of
Directors at least 70 days prior to the first anniversary of the preceding
year's annual meeting, a stockholder's notice required by this By-Law shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th day following the day on which such public announcement is
first made by the Corporation.
(B) Special Meeting of Stockholders. Only such business shall
-------------------------------
be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting. Nominations
of persons for election to the Board of Directors may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) provided that the Board of Directors has determined that
directors shall be elected at such meeting, by any stockholder of the
Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 8, who shall be entitled to vote at the meeting and
who complies with the notice procedures set forth in this Section 8. In the
event the Corporation calls a special meeting of stockholders for the purpose of
electing one or more directors to the Board of Directors, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this Section 8 shall be
delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which public
announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting. In no
event shall the public announcement of an adjournment of a special meeting
commence a new time period for the giving of a stockholder's notice as described
above.
4
(C) General. (1) Only such persons who are nominated in
-------
accordance with the procedures set forth in this Section 8 shall be eligible to
serve as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this By-Law. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in this By-Law and, if any
proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this Section 8, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section 8,
a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this Section 8 shall be deemed to affect any
rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
Section 9. Maintenance and Inspection of Stockholder List. The
----------------------------------------------
officer who has charge of the stock ledger of the Corporation 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.
5
Section 10. Stockholder Action by Written Consent. Stockholders may
-------------------------------------
act by written consent in lieu of a meeting only in accordance with Article VIII
of the Certificate of Incorporation.
ARTICLE III
DIRECTORS
---------
Section 1. Number of Directors. Subject to the rights of holders of
-------------------
preferred stock of the Corporation, the number of directors which shall
constitute the whole Board of Directors shall be not less than three (3) and not
more than twelve (12). The exact number of directors shall be determined by
resolution adopted by a majority of the number of directors the Board would have
if there were no vacancies, and the initial number of directors shall be eight
(8). The directors need not be stockholders. The directors shall be elected at
the annual meeting of the stockholders and, except as provided in Section 2 of
this Article III, each director elected shall hold office until his successor is
elected and qualified; provided, however, that unless otherwise restricted by
-------- -------
the Certificate of Incorporation or By-Laws, any director or the entire Board of
Directors may be removed, either with or without cause, from the Board of
Directors by holders of a majority of the voting power of the shares of capital
stock of the Corporation entitled to vote at an election of directors.
Section 2. Vacancies. Subject to the rights of holders of preferred
---------
stock of the Corporation, vacancies on the Board of Directors by reason of
death, resignation, retirement, disqualification, removal from office, or
otherwise, and newly created directorships resulting from any increase in the
authorized number of directors may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. The
directors so chosen shall hold office until the next annual election of
directors and until their successors are duly elected and shall qualify, unless
sooner replaced by a vote of the shareholders. If there are no directors in
office, then an election of directors may be held in the manner provided by
statute.
Section 3. Powers. The property and business of the Corporation shall
------
be managed by or under the direction of its Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certificate of Incorporation or
by these By-Laws directed or required to be exercised or done by the
stockholders.
6
Section 4. Place of Directors' Meetings. The directors may hold their
----------------------------
meetings and have one or more offices, and keep the books of the Corporation
outside of the State of Delaware.
Section 5. Regular Meetings. Regular meetings of the Board of
----------------
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board.
Section 6. Special Meetings. Special meetings of the Board of
----------------
Directors may be called by the Chairman of the Board on forty-eight hours'
notice to each director, sent personally, by mail, by telegram, by telecopier,
by electronic mail or by courier service; special meetings shall be called by
the Chairman of the Board or the Secretary in like manner and on like notice on
the written request of two directors.
Section 7. Quorum. At all meetings of the Board of Directors a
------
majority of the authorized number of directors shall be necessary and sufficient
to constitute a quorum for the transaction of business, and the vote 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 may be otherwise
specifically provided by statute, by the Certificate of Incorporation or by
these By-Laws. If a quorum shall not be present at any meeting of the Board of
Directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. If only one director is authorized, such sole director shall
constitute a quorum. At any meeting, a director shall have the right to be
accompanied by counsel, provided that such counsel shall agree to any
confidentiality restrictions reasonably imposed by the Corporation.
Section 8. Action Without Meeting. Unless otherwise restricted by the
----------------------
Certificate of Incorporation or 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 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 or committee.
Section 9. Telephonic Meetings. Unless otherwise restricted by the
-------------------
Certificate of Incorporation or these By-Laws, members of the Board of
Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors, or any committee, by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
par-
7
ticipation in a meeting shall constitute presence in person at such meeting.
Section 10. Committees of Directors. (a) The Board of Directors may,
-----------------------
by resolution passed by a majority of the whole Board, designate one or more
committees, each such committee to consist of one or more of the directors of
the Corporation. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent or disqualified member at
any meeting of the committee. 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 to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors,
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, and
may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference
to amending the Certificate of Incorporation, adopting an agreement of merger or
consolidation, recommending to the stockholders the sale, lease or exchange of
all or substantially all of the Corporation's property and assets, recommending
to the stockholders a dissolution of the Corporation or a revocation of a
dissolution, or amending the By-Laws of the Corporation; and, unless the
resolution or the Certificate of Incorporation expressly so provide, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock.
(b) Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors when required.
Section 11. Compensation. Unless otherwise restricted by the
------------
Certificate of Incorporation or these By-Laws, the Board of Directors shall have
the authority to fix the compensation of directors. The directors may be paid
their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
8
ARTICLE IV
OFFICERS
--------
Section 1. Officers. The officers of this corporation shall be chosen
by the Board of Directors and shall include a President, a Secretary, and a
Treasurer. The Corporation may also have, at the discretion of the Board of
Directors, such other officers as are desired, including a Chairman of the
Board, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, and such other officers as may be appointed in accordance
with the provisions of Section 3 hereof. In the event there are two or more Vice
Presidents, then one or more may be designated as Executive Vice President,
Senior Vice President, or other similar or dissimilar title. At the time of the
election of officers, the directors may by resolution determine the order of
their rank. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these By-Laws otherwise provide.
Section 2. Election of Officers. The Board of Directors, at its first
--------------------
meeting after each annual meeting of stockholders, shall choose the officers of
the Corporation.
Section 3. Subordinate Officers. The Board of Directors or the
--------------------
President may appoint such other officers and agents as it shall deem necessary
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board.
Section 4. Compensation of Officers. The salaries of all officers and
------------------------
agents of the Corporation shall be fixed by the Board of Directors.
Section 5. Term of Office; Removal and Vacancies. The officers of the
-------------------------------------
Corporation shall hold office until their successors are chosen and qualify in
their stead. Any officer elected or appointed by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. If the office of any officer or officers elected or appointed by the
Board of Directors becomes vacant for any reason, the vacancy shall be filled by
the Board of Directors.
Section 6. Chairman of the Board. The Chairman of the Board, if any,
---------------------
shall, if present, preside at all meetings of the Board of Directors and of
stockholders and exercise and perform such other powers and duties as may be
from time to time assigned to him by the Board of Directors or prescribed by
these By-Laws. If there is no President, the Chairman of the Board shall in
addition be the Chief Executive Officer of the Corporation and
Section 7. President. Subject to such supervisory powers, if any, as
---------
may be given by the Board of Directors to the Chairman of the Board, if there be
such an officer, the President shall be the Chief Executive Officer of the
Corporation and
9
shall have the powers and duties prescribed in Section 7 of this Article IV.
shall, subject to the control of the Board of Directors, have general
supervision, direction and control of the business and officers of the
Corporation. In the absence of the Chairman of the Board, or if there be none,
the President shall preside at all meetings of stockholders and at all meetings
of the Board of Directors. He shall have the general powers and duties of
management usually vested in the office of President and Chief Executive Officer
of corporations, and shall have such other powers and duties as may be
prescribed by the Board of Directors or these By-Laws.
Section 8. Vice Presidents. In the absence or disability of the
---------------
President, the Vice Presidents in order of their rank as fixed by the Board of
Directors, or if not ranked, the Vice President designated by the Board of
Directors or the President, or if not so designated, in the order of their
seniority of service in the position, shall perform all the duties of the
President, and when so acting shall have all the powers of and be subject to all
the restrictions upon the President. Without limiting the authority of any other
officer, each Vice President shall have authority to execute contracts and
similar documents on behalf of the Corporation and shall have such other duties
as from time to time may be prescribed for him or her by the Board of Directors.
Section 9. Secretary. The Secretary shall attend all sessions of the
---------
Board of Directors and all meetings of the stockholders and record all votes and
the minutes of all proceedings in a book to be kept for that purpose; and shall
perform like duties for the standing committees when required by the Board of
Directors. He shall give, or cause to be given, notice of all meetings of the
stockholders and of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or these By-Laws.
He shall keep in safe custody the seal of the Corporation, and when
authorized by the Board, affix the same to any instrument requiring it, and when
so affixed it shall be attested by his signature or by the signature of an
Assistant Secretary. The Board of Directors may give general authority to any
other officer to affix the seal of the Corporation and to attest the affixing by
his signature.
10
Section 10. Assistant Secretaries. The Assistant Secretary, or if
---------------------
there be more than one, any Assistant Secretary shall, in the absence or
disability of the Secretary, perform the duties and exercise the powers of the
Secretary and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
Section 11. Treasurer. The Treasurer shall have the custody of the
---------
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys, and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and
shall render to the Board of Directors, at its regular meetings, or when the
Board of Directors so requires, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. If required by the Board of
Directors, he shall give the Corporation a bond, in such sum and with such
surety or sureties as shall be satisfactory to the Board of Directors, for the
faithful performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 12. Assistant Treasurer. The Assistant Treasurer, or if there
-------------------
shall be more than one, any Assistant Treasurer shall, in the absence or
disability of the Treasurer, perform the duties and exercise the powers of the
Treasurer and shall perform such other duties and have such other powers as the
Board of Directors may from time to time prescribe.
ARTICLE V
CERTIFICATES OF STOCK
---------------------
Section 1. Certificates. Every holder of stock of the Corporation
------------
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 Secretary or an Assistant Secretary,
or the Treasurer or an Assistant Treasurer of the Corporation, certifying the
number of shares represented by the certificate owned by such stockholder in the
Corporation.
Section 2. Signature on Certificates. Any or all of the signatures on
-------------------------
the certificate may be a facsimile. In case
11
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a 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 date of issue. any officer, transfer agent,
or registrar who has signed or whose facsimile signature has been placed upon a
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 date
of issue.
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
--------------------------------------------------
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating,
Section 3. Statement of Stock Rights, Preferences, Privileges. If the
--------------------------------------------------
Corporation shall be authorized to issue more than one class of stock or more
than one series of any class, the powers, designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualification, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in
Section 202 of the General Corporation Law of Delaware (the "DGCL"), in lieu of
the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series
of stock, a statement that the Corporation will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 4. Lost Certificates. The Board of Directors may direct a new
-----------------
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
Section 5. Transfer of Stock. Upon surrender to the Corporation, or
-----------------
the transfer agent of the Corporation, of a certificate for shares duly endorsed
or accompanied by proper evidence of succession, assignation or authority to
transfer, the Corporation shall issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its book.
12
Section 6. Fixing Record Date. In order that the Corporation may
------------------
determine the stockholders entitled to notice of or to vote at any meeting of
the stockholders, or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the Board of Directors may fix 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. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 7. Registered Stockholders. The Corporation shall be entitled
-----------------------
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly shall not be bound to recognize any equitable or
other claim or interest in such share on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly provided
by the laws of the State of Delaware.
ARTICLE VI
INDEMNIFICATION
---------------
Section 1. Actions by Others. The Corporation (1) 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 (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director or
an officer of the Corporation and (2) except as otherwise required by Section 3
of this Article VI, may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was an employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee,
agent of or participant in another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding 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
13
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
---- ----------
presumption that the person did not act in good faith and in a manner which he
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. Actions by or in the Right of the Corporation. The
---------------------------------------------
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was a director or officer of the Corporation, and
the Corporation may indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or suit by or
in the right of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was an employee or agent of the Corporation or is
or was serving at the request of the Corporation as a director, officer,
employee, agent of or participant in another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense
or settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his or her duty to the Corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the
Delaware Court of Chancery or such other court shall deem proper.
Section 3. Successful Defense. To the extent that a person who is or
------------------
was a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in Section 1 or Section 2 of this Article, or in defense
of any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
14
Section 4. Right to Indemnification. The right to indemnification
------------------------
conferred in this Article VI shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any such
proceeding in advance of its final disposition, such expenses to be paid by the
Corporation within 20 days after the receipt by the Corporation of a statement
or statements from the claimant requesting such payment or payments of expenses
from time to time; provided, however, that if the DGCL requires, the payment of
-------- -------
such expenses incurred by a director or officer in his or her capacity as a
director or officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including, without
limitation, service to an employee benefit plan) in advance of the final
disposition of a proceeding, shall be made only upon delivery to the Corporation
of an undertaking by or on behalf of such director or officer, to repay all
amounts so advanced if it shall ultimately be determined that such director or
officer is not entitled to be indemnified under this Article VI or otherwise.
Section 5. Specific Authorization. To obtain indemnification under
----------------------
this Article VI, a claimant shall submit to the Corporation a written request,
including therein or therewith such documentation and information as is
reasonably available to the claimant and is reasonably necessary to determine
whether and to what extent the claimant is entitled to indemnification. Any
indemnification under Section 1 or Section 2 of this Article VI (unless ordered
by a court) shall be made by the Corporation only as authorized in the specific
case upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in said Sections 1 and 2 of this
Article VI. Such determination shall be made by (a) the stockholders, (b) the
Disinterested Directors or a committee of such Disinterested Directors
designated by the Disinterested Directors by majority vote, in either case even
though less than a quorum, or (c) if (1) there are no Disinterested Directors or
if the Disinterested Directors by majority vote so direct, or (2) a Change of
Control shall have occurred, then, in the case of either of clauses (1) and (2)
of this clause (c), by an Independent Counsel in a written opinion, which
Independent Counsel shall be selected by a majority vote of a quorum of
Disinterested Directors or, if there are no Disinterested Directors or if a
Change of Control shall have occurred, by the claimant. If it is so determined
that the claimant is entitled to indemnification, payment to the claimant shall
be made within 10 days after such determination.
Section 6. Suit Against Corporation. If a claim under Section 1 or 2
------------------------
of this Article VI is not paid in full by the Corporation within 30 days after a
written claim pursuant to Section
15
5 of this Article VI has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the DGCL or this Article VI for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, Independent Counsel or
stockholders) to have made a de-termination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
DGCL or this Article VI, nor an actual determination by the Corporation
(including its Board of Directors, Independent Counsel or stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 7. Corporation Bound. If a determination shall have been made
-----------------
pursuant to Section 5 of this Article VI that the claimant is entitled to
indemnification, the Corporation shall be bound by such determination in any
judicial proceeding commenced pursuant to Section 6 of this Article VI.
Section 8. Preclusion. The Corporation shall be precluded from
----------
asserting in any judicial proceeding commenced pursuant to Section 6 of this
Article VI that the procedures and presumptions of this Article VI are not
valid, binding and enforceable and shall stipulate in such proceeding that the
Corporation is bound by all the provisions of this Article VI.
Section 9. Right of Indemnity Not Exclusive. The indemnification and
--------------------------------
advancement of expenses provided by this Article shall not be deemed exclusive
of any other rights to which those seeking indemnification may be entitled under
any by-law, agreement, vote of stockholders or disinterested directors 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.
16
Section 10. Insurance. The Corporation may purchase and maintain
---------
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of or participant in another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article, Section 145 of the DGCL or otherwise.
Section 11. Invalidity of any Provisions of this Article. The
--------------------------------------------
invalidity or unenforceability of any provision of this Article VI shall not
affect the validity or enforceability of the remaining provisions of this
Article VI, and, to the fullest extent possible, such provisions of this Article
VI (in-cluding, without limitation, each such portion of any Section of this
Article VI containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
Section 12. Definitions. For purposes of this Article VI:
-----------
(A) "Change of Control" means:
(1) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of voting securities of the Corporation
where such acquisition causes such Person to own 20% or more of the
combined voting power of the then outstanding voting securities of the
Corporation entitled to vote generally in the election of directors (the
"Outstanding Corporation Voting Securities"); provided, however, that for
-------- -------
purposes of this paragraph (1), the following acquisitions shall not be
deemed to result in a Change of Control: (i) any acquisition by Thiokol
Corporation, a Delaware corporation("Thiokol"), (ii) any acquisition
directly from the Corporation, (iii) any acquisition by the Corporation,
(iv) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Corporation or any corporation controlled by
the Corporation or (v) any acquisition by any corporation pursuant to a
transaction that complies with clauses (i), (ii) and (iii) of paragraph (3)
below; provided, further, that if any Person's beneficial ownership of
-------- -------
the Outstanding Corporation Voting Securities reaches or ex-
17
ceeds 20% as a result of a transaction described in clause (ii) or (iii)
above, and such Person subsequently acquires beneficial ownership of
additional voting securities of the Corporation, such subsequent
acquisition shall be treated as an acquisition that causes such Person to
own 20% or more of the Outstanding Corporation Voting Securities; and
provided, further, that if at least a majority of the members of the
-------- -------
Incumbent Board (as defined below) determines in good faith that a Person
has acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of the Outstanding
Corporation Voting Securities inadvertently, and such Person divests as
promptly as practicable a sufficient number of shares so that such Person
beneficially owns (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) less than 20% of the Outstanding Corporation Voting
Securities, then no Change of Control shall have occurred as a result of
such Person's acquisition; or
(2) individuals who, as of November 20, 1997, constitute the
Board of Directors (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board of Directors; provided,
--------
however, that any individual becoming a director subsequent to November 20,
-------
1997, whose election, or nomination for election by the Corporation's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board, or by Thiokol, shall be
considered a member of the Incumbent Board, except that, for this purpose,
any such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the election or
removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board of Directors
shall not be considered a member of the Incumbent Board; or
(3) the consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of
the assets of the Corporation or the acquisition of assets of another
corporation ("Business Combination"); excluding, however, such a Business
Combination (i) involving Thiokol or any of its affiliates or (ii) pursuant
to which (A) all or substantially all of the individuals and entities who
were the beneficial owners of the Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own, directly
or indirectly, more than 60% of, respectively, the then outstanding shares
of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors,
as the case may
18
be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation that as a result of such transaction owns
the Corporation or all or substantially all of the Corporation's assets
either directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Corporation Voting Securities, (B) no Person
(excluding any employee benefit plan (or related trust) of the Corporation
or such corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding
voting securities of such corporation except to the extent that such
ownership existed prior to the Business Combination and (C) at least a
majority of the members of the board of directors of the corporation
resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the
action of the Board of Directors, providing for such Business Combination;
or
(4) approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
(B) "Disinterested Director" means a director of the Corporation
who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(C) "Independent Counsel" means a law firm, a member of a law firm,
or an independent practitioner, that is experienced in matters of corporation
law and shall include any person who, under the applicable standards of
professional conduct then prevailing, would not have a conflict of interest in
representing either the Corporation or the claimant in an action to determine
the claimant's rights under this Article VI.
Section 13. Notice. Any notice, request or other communication
------
required or permitted to be given to the Corporation under this Article VI shall
be in writing and either delivered in person or sent by telecopy, telex,
telegram, overnight mail or courier service, or certified or registered mail,
postage prepaid, return receipt requested, to the Secretary of the Corporation
and shall be effective only upon receipt by the Secretary.
19
ARTICLE VII
GENERAL PROVISIONS
------------------
Section 1. Dividends. Dividends upon the capital stock of the
---------
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Funds Available for Contingencies. Before payment of any
---------------------------------
dividend there may be set aside out of any funds of the Corporation available
for dividends such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purpose as the directors shall think conducive to
the interests of the Corporation, and the directors may abolish any such
reserve.
Section 3. Checks. All checks or demands for money and notes of the
------
Corporation shall be signed by such officer or officers as the Board of
Directors may from time to time designate.
Section 4. Fiscal Year. The fiscal year of the Corporation shall be
-----------
the calendar year.
Section 5. Corporate Seal. The corporate seal shall have inscribed
--------------
thereon the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". Said seal may be used by causing it, a facsimile
thereof or a recitation of the words on it to be impressed or affixed or
reproduced or otherwise.
Section 6. Manner of Giving Notice. Whenever, under the provisions of
-----------------------
the statutes or of the Certificate of Incorporation or of these By-Laws, notice
is required to be given to any director or stockholder, it shall not be
construed to mean personal notice, but such notice may be given in writing, by
mail, addressed to such director or stockholder, at his address as it appears on
the records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in the
United States mail. Notice to directors may also be given, and shall be given in
the case of any notice of meeting sent less than 96 hours prior to such meeting,
by telegram, telecopier, electronic mail or courier service.
20
Section 7. Waiver of Notice. Whenever any notice is required to be
----------------
given under the provisions of the statutes or of the Certificate of
Incorporation or of 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. Presence at a meeting
without objection to the absence or form of notice shall also constitute a
waiver of such notice.
Section 8. Annual Statement. The Board of Directors shall present at
----------------
each annual meeting, and at any special meeting of the stockholders when called
for by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
ARTICLE VIII
AMENDMENTS
----------
Section 1. Amendment by Directors or Stockholders. These By-Laws may
--------------------------------------
be altered, amended or repealed or new By-Laws may be adopted by the
stockholders or by the Board of Directors at any regular meeting of the
stockholders or of the Board of Directors or at any special meeting of the
stockholders or of the Board of Directors if notice of such alteration,
amendment, repeal or adoption of new By-Laws be contained in the notice of such
special meeting. If the power to adopt, amend or repeal By-Laws is conferred
upon the Board of Directors by the Certificate of Incorporation it shall not
divest or limit the power of the stockholders to adopt, amend or repeal By-Laws.
21