EXHIBIT 3.2
CUNO INCORPORATED
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AMENDED AND RESTATED BY-LAWS
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(ADOPTED MAY 22, 1985 AND AMENDED AND RESTATED JULY __, 1996)
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ARTICLE 1
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OFFICES
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Section 1.1 Registered Office. The registered office of CUNO Incorporated
(the "CORPORATION") shall be in the City of Wilmington, County of New Castle,
State of Delaware.
Section 1.2 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 of the Corporation may from time to time determine or the business of
the Corporation may require.
ARTICLE 2
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MEETINGS OF STOCKHOLDERS
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Section 2.1 Place of Meeting. All meetings of the stockholders for the
election of directors shall be held at such place either within or without the
State of Delaware as shall be designated from time to time by the Board of
Directors and stated in the notice of the meeting. Meetings of stockholders for
any other purpose may be held at such time and place, within or without the
State of Delaware, as shall be stated by the Board of Directors in the notice of
the meeting or in a duly executed waiver of notice thereof.
Section 2.2 Voting Lists. The officer who has charge of the ledger of the
Corporation shall prepare and make, at least 10 days before every meeting of
stockholders, a complete list, with respect to each issue to be considered at
such meeting, of the stockholders entitled to vote at the meeting on such issue,
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 10 days prior
to the meeting, either at a place within the city where the meeting is to be
held, which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present.
Section 2.3 Time of Annual Meeting. Annual meetings of all stockholders
shall be held on the second Tuesday in February, if not a legal holiday, and if
a legal holiday, then on the next secular day following, at 10:00 A.M., or at
such other date and time as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, at which stockholders
shall elect directors to hold office for the term provided in SECTION 3.2 of
these By-laws and conduct such other business as shall be considered.
Section 2.4 Annual Meeting Agenda Items. At the annual meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) by or at the direction of the Board of Directors, or (ii)
by any stockholder of the Corporation who complies with the notice procedures
set forth below in the time herein provided. For business to be properly brought
before an annual meeting by a stockholder, the stockholder must deliver written
notice to, or mail such written notice so that it is received by, the secretary
of the Corporation, at the principal executive offices of the Corporation, not
less than 45 nor more than 60 days prior to the first anniversary of the date of
the Corporation's consent solicitation or proxy statement released to
stockholders in connection with the previous year's election of directors or
meeting of stockholders, except that if no annual meeting of stockholders or
election by consent was held in the previous year, a proposal must be received
by the Corporation within 10 days after the Corporation has "publicly disclosed"
the date of the meeting in the manner provided below. The stockholder's notice
to the secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (A) a brief description of the business desired
to be brought before the annual meeting and the reasons for conducting such
business at the annual meeting, (B) the name and address, as they appear on the
Corporation's books, of the stockholder proposing such business, (C) the class
and number of shares of the Corporation which are beneficially owned by the
stockholder, and (D) any material interest of the stockholder in such business.
At the annual meeting, the presiding officer shall, if the facts warrant,
determine and declare to the meeting that such business was not properly brought
before the meeting in accordance with the provisions of this SECTION 2.4, and if
he or she should so determine, he or she shall so declare to the meeting, and
any such business not properly brought before the meeting shall not be
transacted. Whether or not the foregoing procedures are followed, no matter
which is not a proper matter for stockholder consideration shall be brought
before the meeting. For purposes of these By-laws, "publicly disclosed" or
"public disclosure" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press, or a comparable national news service or
in a document publicly filed by the Corporation with the Securities and Exchange
Commission.
Section 2.5 Notice of Annual Meetings. Except as otherwise required by law,
written notice of the annual meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than 10 nor more than 60 days before the date of the meeting.
Section 2.6 Director Nominations. Only persons who are nominated in
accordance with the following procedure shall be eligible to serve as directors.
Nominations of persons for election to the Board of Directors of the Corporation
at a meeting of stockholders may be made (i) by or at the direction of the Board
of Directors, or (ii) by any stockholder of the Corporation entitled to vote in
the election of directors at the meeting who complies with the notice procedures
set forth in this SECTION 2.6. Such nominations, other than those made by or at
the direction of the Board of Directors, shall be made pursuant to timely notice
in writing to the secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to, or mailed and received by, the secretary of the
Corporation at the principal executive offices of the Corporation not less than
60 nor more than 90 days prior to the meeting; provided, however, that if the
Corporation has not "publicly disclosed" (in the manner provided in the last
sentence of SECTION 2.4) the date of the meeting at least 70 days prior to the
meeting date, notice may
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be timely made by a stockholder under this Section if received by the secretary
of the Corporation not later than the close of business on the tenth day
following the day on which the Corporation "publicly disclosed" the meeting
date. Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); and (ii) as to
the stockholder giving notice (A) the name and address, as they appear on the
Corporation's books, of such stockholder, and (B) the class and number of shares
of the Corporation which are beneficially owned by such stockholder. At the
request of the Board of Directors any person nominated by the Board of Directors
for election as a director shall furnish to the secretary of the Corporation
that information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible to serve
as a director of the Corporation unless nominated in accordance with the
procedure set forth herein. The presiding officer shall, if the facts so
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the By-laws, and if such officer
should so determine, such officer shall so declare to the meeting and the
defective nomination shall be disregarded.
Section 2.7 Special Meetings of the Stockholders. Special meetings of all
of the stockholders of the Corporation may only be called by the Board of
Directors pursuant to a resolution approved by a majority of the Board of
Directors. The business transacted at any special meeting of the stockholders
shall be limited to the purposes stated in the notice for the meeting
transmitted to stockholders.
Section 2.8 Notice of Special Meetings. Written notice of a special meeting
stating the place, date and hour of the meeting and the purpose or purposes for
which the meeting is called shall be given by the secretary of the Corporation
not less than 10 nor more than 60 days before the date of the meeting to each
stockholder entitled to vote at such meeting.
Section 2.9 Quorum and Adjournments. The holders of a majority of the
voting power of the stock issued and outstanding and entitled to vote, present
in person or represented by proxy, shall constitute a quorum at all meetings of
the stockholders for the transaction of business, except as otherwise provided
by statute or the Corporation's Certificate of Incorporation. If, however, such
quorum shall not be present or represented at any such meeting of the
stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented; provided that if the adjournment is for more than 30
days, or if after the adjournment a new record date is fixed by the directors
for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the adjourned meeting. 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.
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Section 2.10 Fixing of Record Date. For purposes of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, 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 precede the date upon which the resolution fixing the record date is
adopted, and which shall be (i) not more than 60 nor less than 10 days before
the date of a meeting, and (ii) not more than 60 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 any adjourned
meeting.
Section 2.11 Vote Required. When a quorum is present at any meeting of all
stockholders, the affirmative vote of holders of a majority of the voting power
of the stock issued and outstanding and entitled to vote thereat, 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 of the Certificate of Incorporation requires a different vote, in
which case such express provision shall govern and control the decision of such
question.
Section 2.12 Voting Rights. Unless otherwise provided in the Certificate of
Incorporation, each stockholder having voting power shall at every meeting of
the stockholders be entitled to one vote in person or by proxy for each share of
the capital stock having voting power held by such stockholder, but no proxy
shall be voted on after three (3) years from its date, unless the proxy provides
for a longer period. At any meeting of the stockholders, every stockholder
entitled to vote may vote in person or by proxy authorized by an instrument in
writing or by a transmission permitted by law filed in accordance with the
procedure established for the meeting. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission created pursuant to
this paragraph may be substituted or used in lieu of the original writing or
transmission for any and all purposes for which the original writing or
transmission could be used; provided that, such copy, facsimile
telecommunication or other reproduction shall be a complete reproduction of the
entire original writing or transmission. All voting, including the election of
directors but except where otherwise required by law, may be by a voice vote;
provided, however, that upon demand by a stockholder entitled to vote or by his
or her proxy, a stock vote shall be taken. Every stock vote shall be taken by
ballots, each of which shall state the name of the stockholder or proxy voting
and such other information as may be required under the procedure established
for the meeting. The Corporation may, and to the extent required by law shall,
in advance of any meeting of stockholders, appoint one or more inspectors to act
at the meeting and make a written report thereof. The Corporation may designate
one or more persons as alternate inspectors to replace any inspector who fails
to act. If no inspector or alternate is able to act at a meeting of
stockholders, the person presiding at the meeting may, and to the extent
required by law shall, appoint one or more inspectors to act at the meeting.
Each inspector, before entering upon the discharge of his or her duties, shall
take and sign an oath to faithfully execute the duties of inspector with strict
impartiality and according to the best of his or her ability. Every vote taken
by ballots shall be counted by an inspector or inspectors appointed by the
chairman of the meeting.
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Section 2.13 Inspectors of Elections; Opening and Closing the Polls. The
Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the presiding
officer of the meeting shall appoint one or more inspectors to act at the
meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall have the duties prescribed by law. The presiding officer of the meeting
shall fix and announce at the meeting the date and time of the opening and the
closing of the polls for each matter upon which the stockholders will vote at a
meeting.
Section 2.14 The chairman of the Board of Directors shall preside at all
meetings of the stockholders. In the absence or inability to act of the
chairman, the chief executive officer, the president, the chief financial
officer or an executive vice president (in that order) shall preside, and in
their absence or inability to act another person designated by one of them shall
preside. The secretary of the Corporation shall act as secretary of each meeting
of the stockholders. In the event of his or her absence or inability to act, the
chairman of the meeting shall appoint a person who need not be a stockholder to
act as secretary of the meeting.
Section 2.15 Meetings of the stockholders shall be conducted in a fair
manner but need not be governed by any prescribed rules of order. The presiding
officer of the meeting shall establish an agenda for the meeting. The presiding
officer's rulings on procedural matters shall be final. The presiding officer is
authorized to impose reasonable time limits on the remarks of individual
stockholders and may take such steps as such officer may deem necessary or
appropriate to assure that the business of the meeting is conducted in a fair
and orderly manner.
ARTICLE 3
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DIRECTORS
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Section 3.1 General Powers. The business of the Corporation shall be
managed by or under the direction of its Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not required by statute, by the Certificate of Incorporation, or by these By-
laws to be done by the stockholders. Directors need not be residents of the
State of Delaware or stockholders of the Corporation.
Section 3.2 Election. Directors shall be elected as specified in the
Certificate of Incorporation, and each director elected shall hold office during
the term for which he or she is elected and until his or her successor is
elected and qualified.
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Section 3.3 Removal. Directors may only be removed for cause by the holders
of at least 80 percent of the voting power of the shares entitled to vote
generally in the election of directors.
Section 3.4 Vacancies. Any vacancies occurring in the Board of Directors
and newly created directorships shall be filled in the manner provided in the
Certificate of Incorporation of the Corporation.
Section 3.5 Place of Meetings. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware. The first meeting of each newly elected Board of Directors shall be
held immediately following the adjournment of the annual meeting of the
stockholders at the same place as such annual meeting and no notice of such
meeting shall be necessary to the newly elected directors in order to legally
constitute the meeting, provided a quorum shall be present. In the event such
meeting is not held at such time and place, the meeting may be held at such time
and place as shall be specified in a notice given as hereinafter provided for
special meetings of the Board of Directors, or as shall be specified in a
written waiver signed by all of the directors.
Section 3.6 Regular Meetings. Regular meetings of the Board of Directors
may be held without notice at such time and at such place as shall from time to
time be determined by the Board of Directors.
Section 3.7 Special Meetings. Special meetings of the Board of Directors
may be called by the chairman, the chief executive officer, the president or the
chief financial officer on at least one days' notice to each director, either
personally, or by courier, telephone, facsimile, mail or telegram. Special
meetings shall be called by the chairman, the chief executive officer, the
president or the chief financial officer in like manner and on like notice at
the written request of one-half or more of the directors comprising the Board of
Directors stating the purpose or purposes for which such meeting is requested.
Notice of any meeting of the Board of Directors for which a notice is required
may be waived in writing signed by the person or persons entitled to such
notice, whether before or after the time of such meeting, and such waiver shall
be equivalent to the giving of such notice. Attendance of a director at any such
meeting shall constitute a waiver of notice thereof, except where a director
attends a meeting for the express purpose of objecting to the transaction of any
business because such meeting is not lawfully convened. Neither the business to
be transacted at nor the purpose of any meeting of the Board of Directors for
which a notice is required need be specified in the notice, or waiver of notice,
of such meeting. The chairman shall preside at all meetings of the Board of
Directors. In the absence or inability to act of the chairman, the chief
executive officer, the president, the chief financial officer or an executive
vice president (in that order) shall preside, and in their absence or inability
to act another director designated by one of them shall preside.
Section 3.8 Quorum; No Action on Certain Matters. At all meetings of the
Board of Directors, a majority of the then duly elected directors shall
constitute a quorum for the transaction of business and the act of a majority of
the directors present at any meeting at which
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there is a quorum shall be the act of the Board of Directors, except as may be
otherwise specifically provided by statute or by the Certificate of
Incorporation. 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.
Section 3.9 Resignations. Any director of the Corporation may resign at any
time by giving written notice to the Board of Directors, the chairman, the chief
executive officer, the president, the chief financial officer or the secretary
of the Corporation. Such resignation shall take effect at the time specified
therein and, unless tendered to take effect upon acceptance thereof, the
acceptance of such resignation shall not be necessary to make it effective.
Section 3.10 Informal Action. 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 of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 3.11 Participation by Conference Telephone. Unless otherwise
restricted by the Certificate of Incorporation or these By-laws, members of the
Board of Directors, or any committee designated by such Board of Directors, may
participate in a meeting of such Board of Directors, or 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 participation in a
meeting pursuant to this subsection shall constitute presence in person at such
meeting.
Section 3.12 Presumption of Assent. A director of the Corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his or her dissent shall be entered in the minutes of the meeting
or unless he or she shall file his or her written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 3.13 Compensation. In the discretion of the Board of Directors, the
directors may be paid their expenses, if any, for 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.
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ARTICLE 4
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COMMITTEES OF DIRECTORS
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Section 4.1 Appointment and Powers. The Board of Directors may, by
resolution passed by a majority of the whole Board of Directors, designate one
or more committees, each committee to consist of one or more of the directors of
the Corporation. The Board of Directors 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, she 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 (except that a committee may, to
the extent authorized in the resolution or resolutions providing for the
issuance of shares of stock adopted by the Board of Directors as provided in
subsection (a) of Section 151 of the Delaware General Corporation Law, fix the
designations and any of the preferences or rights of such shares relating to
dividends, redemption, dissolution, any distribution of assets of the
Corporation or the conversion into, or the exchange of such shares for, shares
of any other class or classes of stock of the Corporation or fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series), and if the resolution which designates the committee or a
supplemental resolution of the Board of Directors shall so provide, such other
items or tasks as may be determined from time to time by resolution adopted by
the Board of Directors.
Section 4.2 Committee Minutes. Each committee shall keep regular minutes of
its meetings and shall file such minutes and all written consents executed by
its members with the Secretary of the Corporation. Each committee may determine
the procedural rules for meeting and conducting its business and shall act in
accordance therewith, except as otherwise provided herein or required by law.
Adequate provision shall be made for notice to members of all meetings; one-
third of the members shall constitute a quorum unless the committee shall
consist of one or two members, in which event one member shall constitute a
quorum; and all matters shall be determined by a majority vote of the members
present. Action may be taken by any committee without a meeting if all members
thereof consent thereto in writing, and the writing or writings are filed with
the minutes of the proceedings of such committee.
ARTICLE 5
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NOTICES
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Section 5.1 Manner of Notice. Whenever, under applicable law or the
Certificate of Incorporation or of these By-laws, notice is required to be given
to any director or stockholder,
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unless otherwise provided in the Certificate of Incorporation or these By-laws,
such notice may be given in writing, by courier or mail, addressed to such
director or stockholder, at his or her address as it appears on the records of
the Corporation, with freight or postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall have been deposited with
such courier or in the United States mail. Notice to directors may also be given
by telegram, mailgram, telex or telecopier.
Section 5.2 Waiver. 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.
ARTICLE 6
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OFFICERS
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Section 6.1 Number and Qualifications. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a chairman of the board,
a chief executive officer, a president, a chief financial officer, one or more
vice-presidents and a secretary. The Board of Directors may also choose
additional co-chairman, additional vice-presidents, a treasurer, one or more
assistant secretaries and assistant treasurers and such additional officers as
the Board of Directors may deem necessary or appropriate from time to time.
Membership on the Board of Directors shall not be a prerequisite to the holding
of any other office. Any number of offices may be held by the same person,
unless the Certificate of Incorporation or these By-laws otherwise provide.
Section 6.2 Election. The Board of Directors at its first meeting after
each annual meeting of stockholders shall elect a chairman of the board, a chief
executive officer, a president, a chief financial officer, one or more vice-
presidents (one of whom may be chosen as executive vice-president), and a
secretary, and may choose a treasurer, one or more assistant secretaries and
assistant treasurers and such other officers as the Board of Directors shall
deem desirable.
Section 6.3 Other Officers and Agents. The Board of Directors may choose
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 of Directors.
Section 6.4 Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by the Board of Directors.
Section 6.5 Term of Office. The officers of the Corporation shall hold
office until their successors are chosen and qualify or until their earlier
resignation or removal. Any officer elected or appointed by the Board of
Directors may be removed at any time by the affirmative
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vote of a majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of Directors.
Section 6.6 The Chairman of the Board. The chairman of the board shall
preside at all meetings of the stockholders and of the Board of Directors and
shall see that orders and resolutions of the Board of Directors are carried into
effect. The chairman of the board shall perform such duties as may be assigned
to him by the Board of Directors.
Section 6.7 The Chief Executive Officer. The chief executive officer shall
be the principal executive officer of the Corporation and shall, in general,
supervise and control all of the business and affairs of the Corporation, unless
otherwise provided by the Board of Directors. In the absence of the chairman of
the board, he or she shall preside at all meetings of the stockholders and of
the Board of Directors and shall see that orders and resolutions of the Board of
Directors are carried into effect. He or she may sign bonds, mortgages,
certificates for shares and all other contracts and documents whether or not
under the seal of the Corporation except in cases where the signing and
execution thereof shall be expressly delegated by law, by the Board of Directors
or by these By-laws to some other officer or agent of the Corporation. He or she
shall have general powers of supervision and shall be the final arbiter of all
differences between officers of the Corporation and his or her decision as to
any matter affecting the Corporation shall be final and binding as between the
officers of the Corporation subject only to its Board of Directors.
Section 6.8 The President. Unless another party has been designated as
chief operating officer, the president shall be the chief operating officer of
the Corporation responsible for the day-to-day active management of the business
of the Corporation, under the general supervision of the chief executive
officer. In the absence of the chief executive officer, the president shall
perform the duties of the chief executive officer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the chief
executive officer. He or she shall have concurrent power with the chief
executive officer to sign bonds, mortgages, certificates for shares and other
contracts and documents, whether or not under the seal of the Corporation except
in cases where the signing and execution thereof shall be expressly delegated by
law, by the Board of Directors, or by these By-laws to some other officer or
agent of the Corporation. In general, he or she shall perform all duties
incident to the office of president and such other duties as the chief executive
officer or the Board of Directors may from time to time prescribe.
Section 6.9 The Chief Operating Officer. The Board of Directors shall
designate whether the president or some other party shall be the chief operating
officer of the Corporation. If the president has not been designated as chief
operating officer, the chief operating officer shall have such duties and
responsibilities, under the general supervision of the president, as the
president or Board of Directors may from time to time prescribe.
Section 6.10 The Chief Financial Officer. The chief financial officer shall
be the principal accounting and financial officer of the Corporation. He or she
shall: (a) have charge of and be responsible for the maintenance of adequate
books of account for the Corporation; (b) have charge and custody of all funds
and securities of the Corporation, and be responsible therefor and for the
receipt and disbursement thereof; and (c) perform all the duties incident to
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the office of the chief financial officer and such other duties as from time to
time may be assigned to him by the president or by the Board of Directors. If
required by the Board of Directors, the chief financial officer shall give a
bond for the faithful discharge of his or her duties in such sum and with such
surety or sureties as the Board of Directors may determine.
Section 6.11 The Vice-Presidents. In the absence of the president or in the
event of his or her inability or refusal to act, the vice-president (or in the
event there be more than one vice-president, the executive vice-president and
then the other vice-president or vice-presidents in the order designated, or in
the absence of any designation, then in the order of their election) shall
perform 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. The vice-
presidents shall perform such other duties and have such other powers as the
chief executive officer or the Board of Directors may from time to time
prescribe.
Section 6.12 The Secretary. The secretary shall attend all meetings of the
Board of Directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He or she shall give, or cause to be given,
or cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform such other duties as may
be prescribed by the Board of Directors or the chief executive officer, under
whose supervision he or she shall be. He or she shall have custody of the
corporate seal of the Corporation and he or she, or an assistant secretary,
shall have authority to affix the same to any instrument requiring it and when
so affixed, it may be attested by his or her signature or by the signature of
such 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 or her signature.
Section 6.13 The Treasurer. In the absence of the chief financial officer
or in the event of his or her inability or refusal to act, the treasurer shall
perform the duties of the chief financial officer, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the chief
financial officer. The treasurer shall perform such other duties and have such
other powers as the chief executive officer or the Board of Directors may from
time to time prescribe.
Section 6.14 The Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the Board
of Directors (or if there be no such determination, then in the order of their
election), shall, in the absence of the secretary or in the event of his or her
inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the
chief executive officer or the Board of Directors may from time to time
prescribe.
Section 6.15 The Assistant Treasurer. The assistant treasurer, or if there
shall be more than one, the assistant treasurers in the order determined by the
Board of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the treasurer or in the event of his
or her inability or refusal to act, perform the duties and exercise
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the powers of the treasurer and shall perform such other duties and have such
other powers as the chief executive officer or the Board of Directors may from
time to time prescribe.
ARTICLE 7
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CERTIFICATES OF STOCK, TRANSFERS, AND RECORD DATES
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Section 7.1 Form of Certificates. Every holder of stock in the Corporation
shall be entitled to have a certificate, signed by, or in the name of the
Corporation by, the chairman of the Board of Directors, the chief executive
officer, the president, the chief financial officer, a vice-president, the
treasurer, an assistant treasurer, the secretary or an assistant secretary of
the Corporation, certifying the number of shares owned by him or her in the
Corporation. If the Corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the powers, designation,
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 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, in
lieu of the foregoing requirements, there may 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, 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. Subject to the
foregoing, certificates for stock of the Corporation shall be in form as the
Board of Directors may from time to time prescribe.
Section 7.2 Facsimile Signatures. Where a certificate is countersigned (1)
by a transfer agent other than the Corporation or its employee, or, (2) by a
registrar other than the Corporation or its employee, any other signature on the
certificate may be facsimile. In case 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 or she were such officer, transfer agent or registrar at the date of
issue.
Section 7.3 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 or her legal representative, to advertise the same in such
manner as it shall require and/or give the Corporation a bond in such sum as it
may direct as indemnifying against any claim that may be made against the
Corporation or its transfer agent or registrar with respect to the certificate
alleged to have been lost, stolen or destroyed.
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Section 7.4 Transfers 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, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 7.5 Registered Stockholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends and to vote as such owner and to hold liable for
calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of Delaware.
ARTICLE 8
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GENERAL PROVISIONS
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Section 8.1. 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 or rights to acquire the same, subject to the
provisions of the Certificate of Incorporation. 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 or reserves 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 interest of the Corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
Section 8.2 Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
Section 8.3 Fiscal Year. The fiscal year of the Corporation shall end on
the last day of October of each year unless otherwise fixed by resolution of the
Board of Directors.
Section 8.4 Seal. The corporate seal shall have inscribed thereon the name
of the Corporation and the words "Corporate Seal, Delaware". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
Section 8.5 Stock in Other Corporations. Shares of any other corporation
which may from time to time be held by this Corporation may be represented and
voted at any meeting of shareholders of such corporation by the chairman of the
board, the chief executive officer, the president, the chief financial officer
or a vice president, or by any proxy appointed in writing
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by the chairman of the board, the chief executive officer, the president, the
chief financial officer or a vice-president of the Corporation, or by any other
person or persons thereunto authorized by the Board of Directors. Shares
represented by certificates standing in the name of the Corporation may be
endorsed for sale or transfer in the name of the Corporation by the chairman of
the board, the chief executive officer, the president, the chief financial
officer or any vice-president or by any other officer or officers thereunto
authorized by the Board of Directors. Shares belonging to the Corporation need
not stand in the name of the Corporation, but may be held for the benefit of the
Corporation in the individual name of the chief financial officer or of any
other nominee designated for the purpose of the Board of Directors.
ARTICLE 9
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AMENDMENTS
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These By-laws may be altered, amended or repealed or new By-laws may be
adopted only in the manner provided in the Corporation's Certificate of
Incorporation.
ARTICLE 10
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CONFLICT OF INTERESTS
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Section 10.1 No contract or transaction between the Corporation and one or
more of its directors or officers, or between the Corporation and any other
corporation, partnership, association, or other organization in which one or
more of its directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his, her or their votes are counted for such
purpose, if:
(i) The material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or
(ii) The material facts as to his or her relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or
(iii) The contract or transaction is fair as to the Corporation as
of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof, or the stockholders.
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Section 10.2 Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a
committee which authorizes the contract or transaction.
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