Exhibit 3.2(h)
AMENDED AND RESTATED
BYLAWS
OF
JLG OMNIQUIP, INC.
A DELAWARE CORPORATION
TABLE OF CONTENTS
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ARTICLE I OFFICES........................................................................................1
Section 1. Registered Office...................................................................1
Section 2. Other Offices.......................................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS......................................................................1
Section 1. Place of Meeting....................................................................1
Section 2. Annual Meetings.....................................................................1
Section 3. Notice of Annual Meeting............................................................1
Section 4. Stockholder List....................................................................2
Section 5. Special Meetings....................................................................2
Section 6. Notice of Special Meetings..........................................................2
Section 7. Special Meeting-Business............................................................2
Section 8. Quorum; Adjourned Meetings..........................................................2
Section 9. Required Vote.......................................................................2
Section 10. Voting..............................................................................3
Section 11. Action Without Meeting..............................................................3
ARTICLE III DIRECTORS....................................................................................3
Section 1. General Authority...................................................................3
Section 2. Number and Election.................................................................4
Section 3. Vacancies and Newly Created Directorships...........................................4
Section 4. Meetings Generally..................................................................4
Section 5. First Meeting.......................................................................4
Section 6. Regular Meetings....................................................................4
Section 7. Special Meetings; Notice............................................................4
Section 8. Quorum; Required Vote; Adjourned Meetings...........................................5
Section 9. Action Without Meetings; Telephone Meeting..........................................5
Section 10. Committees..........................................................................5
Section 11. Committee Minutes...................................................................6
Section 12. Compensation........................................................................6
Section 13. Resignation.........................................................................6
ARTICLE IV NOTICES.......................................................................................6
Section 1. General.............................................................................6
Section 2. Waiver of Notice....................................................................7
ARTICLE V OFFICERS.......................................................................................7
Section 1. Number..............................................................................7
Section 2. Election............................................................................7
Section 3. Other Officers......................................................................7
Section 4. Salaries............................................................................7
Section 5. Term of Office; Removal.............................................................8
Section 6. Chairman............................................................................8
Section 7. Chief Executive Officer.............................................................8
Section 8. President...........................................................................8
Section 9. Vice President......................................................................8
Section 10. Secretary...........................................................................8
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Section 11. Assistant Secretary.................................................................9
Section 12. Treasurer...........................................................................9
Section 13. Assistant Treasurer.................................................................9
Section 14. Execution of Documents..............................................................9
ARTICLE VI CERTIFICATES OF STOCK.........................................................................9
Section 1. General.............................................................................9
Section 2. Facsimile..........................................................................10
Section 3. Lost Certificates..................................................................10
Section 4. Transfers of Stock.................................................................10
Section 5. Fixing Record Date.................................................................10
Section 6. Registered Stockholders............................................................11
Section 7. Stockholder's Rights of Inspection.................................................11
ARTICLE VII GENERAL PROVISIONS..........................................................................11
Section 1. Dividends..........................................................................11
Section 2. Voting Securities of Other Corporations............................................11
Section 3. Contracts, Checks, Notes, Bank Accounts, Etc.......................................12
Section 4. Deposits...........................................................................12
Section 5. Fiscal Year........................................................................12
Section 6. Seal...............................................................................12
Section 7. Form of Records....................................................................12
ARTICLE VIII INTERESTED OFFICERS OR DIRECTORS...........................................................12
ARTICLE IX AMENDMENTS...................................................................................13
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AMENDED AND RESTATED
BYLAWS
OF
JLG OMNIQUIP, INC.
A DELAWARE CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be at Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle, State of Delaware 19801. The registered agent
of the Corporation 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 Meeting. All meetings of the stockholders of the
Corporation 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 or
stated in the notice of the meeting or duly executed waivers thereof. The board
of directors may, in its sole discretion, determine that the meeting shall not
be held at any place, but may instead be held by means of remote communication
as authorized in Section 211 of the Delaware General Corporation Law, as
amended.
Section 2. Annual Meetings. The annual meeting of stockholders for the
election of directors and the transaction of other business specified in the
notice of meeting shall be held once each year on any day, and such day shall be
designated by the board of directors and stated in the notice of the meeting.
Section 3. Notice of Annual Meeting. Written notice of the annual meeting
stating the place, if any, date and hour of the meeting, or the means of remote
communications, if any, by which stockholders may be deemed to be present in
person and vote at such 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.
Section 4. 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.
Section 5. 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 by the Chairman and shall be called
by the President or Secretary at the request in writing signed by two or more
members of the board of directors or the holders of more than ten percent (10%)
of the outstanding stock and stating the purpose or purposes of the proposed
meeting.
Section 6. Notice of Special Meetings. Written notice of a special
meeting stating the place, if any, date and hour of the meeting, or the means of
remote communications, if any, by which stockholders may be deemed to be present
in person and vote at such meeting, and the purpose or purposes for which the
meeting is called, 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.
Section 7. Special Meeting-Business. Business transacted at any special
meeting of stockholders shall be limited to the purposes stated in the notice.
Section 8. Quorum; Adjourned Meetings. The holders of a majority of the
stock issued and outstanding and entitled to vote thereat, 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 by the certificate of incorporation. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the 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. 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 adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting.
Section 9. Required Vote. 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
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question is one upon which by express provision of statute or of the certificate
of incorporation a different vote is required, in which case such express
provision shall govern and control the decision of such question.
Section 10. Voting. Each stockholder 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 or acted upon after three years from its date, unless the proxy
provides for a longer period.
Section 11. Action Without Meeting. Any action required by law or these
bylaws to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize such action at a
meeting at which all shares entitled to vote thereon were present and voted. The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the board
of directors is necessary, shall be the date on which the first written consent
is expressed.
A telegram, cablegram or other electronic transmission consenting to an
action to be taken and transmitted by a stockholder, or by a person or persons
authorized to act for a stockholder, shall be deemed to be written, signed and
dated for purposes of this Section 11, provided, that any such telegram,
cablegram or other electronic transmission sets forth or is delivered with
information from which the Corporation can determine (a) that the telegram,
cablegram or other electronic transmission was transmitted by the stockholder,
or by a person or persons authorized to act for the stockholder, and (b) the
date on which such stockholder or authorized person or persons transmitted such
telegram, cablegram or electronic transmission. The date on which such telegram,
cablegram or electronic transmission is transmitted shall be deemed to be the
date on which such consent was signed.
Any copy, facsimile or other reliable reproduction of a consent in
writing may be substituted or used in lieu of the original writing for any and
all purposes for which the original writing could be used, provided, that such
copy, facsimile or other reproduction shall be a complete reproduction of the
entire original writing.
ARTICLE III
DIRECTORS
Section 1. General Authority. The business and affairs 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 such lawful acts and things
as are not by statute or by the certificate of incorporation or by these bylaws
directed or required to be exercised or done by the stockholders.
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Section 2. Number and Election. The number of directors which shall
constitute the first board shall be the number elected by the Incorporator. The
number of directors which shall constitute all subsequent boards shall be
specified by resolution of the board. The directors shall be elected at the
annual meeting of the stockholders, except as provided in Section 3 of this
Article III and except that the first directors of the Corporation shall be
elected by the Incorporator and each director shall hold office until his
successor is elected and qualified or until his earlier resignation or removal.
Directors need not be stockholders.
Section 3. Vacancies and Newly Created Directorships. Vacancies, and
newly created directorships resulting from any increase in the authorized number
of directors, shall be filled by a majority of the directors then in office,
though less than a quorum, or by a sole remaining director, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify, unless sooner displaced. If there
are no directors in office, then an election of directors may be held in the
manner provided by statute.
Section 4. Meetings Generally. The board of directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware.
Section 5. First Meeting. The first meeting of each newly elected board
of directors shall be held immediately after the annual meeting of stockholders
and, if applicable, at the same place, and no notice of such meeting shall be
necessary to the newly elected directors in order to constitute the meeting
legally, provided a quorum shall be present. In the event such meeting is not
held at that time and place, the meeting may be held at such time and, if
applicable, 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 6. Regular Meetings. Regular meetings of the board of directors
or any committee thereof may be held without notice at such time and at such
place, if any, as shall from time to time be determined by the board or
committee, as the case may be.
Section 7. Special Meetings; Notice. Special meetings of the board of
directors or of any committee thereof shall be held whenever called by any
director or committee member, as the case may be. Notice of the meeting shall be
mailed to each director or committee member, addressed to him at his residence
or usual place of business, at least two days before the day on which the
meeting is to be held, or shall be sent to him at such place by telegram or
electronic transmission, or be delivered personally or by telephone, not less
than one day before the meeting is to be held. The notice shall state the date,
time and place, if any, of the meeting but need not state the purpose thereof,
except as otherwise herein expressly provided. A written waiver of notice signed
by the director entitled to notice, whether before or after the time stated
therein, shall be equivalent to notice. Attendance of a director at the meeting
shall constitute a waiver of notice of such meeting, except when the director
attends a meeting
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for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Section 8. Quorum; Required Vote; Adjourned Meetings. At all meetings of
the board or any committee thereof, a majority of directors or committee members
shall constitute a quorum for the transaction of business. The act of a majority
of the directors or committee members present at any meeting at which there is a
quorum shall be the act of the board of directors or committee, as the case may
be, 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 or committee thereof, 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. In the event that such board or
committee is composed of an even number of persons, a majority means one-half of
the number of such persons plus one.
Section 9. Action Without Meetings; Telephone Meeting. Unless otherwise
restricted by the certificate of incorporation or these bylaws, 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 or by
electronic transmission, and the writing or writings or electronic transmission
or transmissions are filed with the minutes of proceedings of the board or
committee.
Unless otherwise restricted by the certificate of incorporation or these
bylaws, members of the board of directors or any committee designated by such
board, may participate in a meeting of such board or committee by means of
conference telephone or other communications equipment by which all persons
participating in the meeting can hear each other and participation in a meeting
pursuant to this Section shall constitute presence in person at such meeting.
Section 10. Committees. The board of directors may designate one or more
committees, each 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. Such committee
or committees shall have such member or members as may be determined from time
to time by resolution adopted by the board of directors. Any such committee, to
the extent provided in the resolution of the board of directors and to the
extent permitted under applicable statutory provisions, shall have and may
exercise all the power 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; provided,
however, that no such committee shall have the power or authority to amend these
bylaws or the certificate of incorporation.
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Section 11. Committee Minutes. Each committee shall keep regular minutes
of its meetings and report the same to the board of directors when required.
Section 12. Compensation. 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.
Section 13. Resignation. Any director of the Corporation may resign at
any time by giving notice in writing or by electronic transmission to the
President or to the Secretary of the Corporation. The resignation of any
director shall take effect at the time specified therein; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 14. Removal. Any director or the entire board of directors may be
removed, at any time, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors, except as may be
provided by statute or the certificate of incorporation.
ARTICLE IV
NOTICES
Section 1. General; Electronic Transmission. Whenever, under the
provisions of statute or of the certificate of incorporation or of these bylaws,
notice is required to be given to any director or stockholder, it shall be
construed to mean written notice by (a) personal delivery, by overnight courier,
or 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
delivered (in the case of personal delivery and overnight courier) or when the
same shall be deposited in the United States mail (in the case of mail), or (b)
by electronic transmission as set forth below. Notice to directors may also be
given by telegram, telephone or electronic transmission.
Without limiting the manner by which notice otherwise may be given to the
stockholders, any notice given by the Corporation to the stockholders shall be
effective if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given. Any such consent shall be revocable by
the stockholder by written notice to the Corporation. Any such consent shall be
deemed revoked if (a) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in accordance with
such consent and (b) such inability becomes known to the Corporation's
Secretary, an Assistant Secretary, transfer agent or other person responsible
for giving such notice; provided, however, that the inadvertent failure to treat
such inability as a revocation shall not invalidate any meeting or other action.
Notice given by electronic transmission shall be deemed given: (i) if by
facsimile, when
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directed to a number at which the stockholder has consented to receive notice,
(ii) if by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive notice, (iii) if by posting on an
electronic network together with separate notice to the stockholder of such
specific posting, upon the later of (A) such posting and (B) the giving of such
separate notice, and (iv) if by any other form of electronic transmission, when
directed to the stockholder.
Section 2. 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 bylaws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, or a waiver by electronic transmission by the person
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to notice. Attendance of a person at a meeting of
stockholders shall constitute a waiver of notice of such meeting, except when
the stockholder attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors or members of a committee of directors need be specified in any
written waiver of notice or any waiver by electronic transmission unless so
required by the certificate of incorporation or these bylaws.
ARTICLE V
OFFICERS
Section 1. Number. The officers of the Corporation shall be chosen by the
board of directors and may be a President, a Chief Executive Officer, one or
more Vice Presidents, a Secretary, a Treasurer, and one or more Assistant
Secretaries or Assistant Treasurers. Any number of offices may be held by the
same person, except the offices of President and Secretary. The offices of the
Corporation for which officers may be elected shall be set forth, from time to
time, by resolution of the board of directors.
Section 2. Election. The board of directors at its first meeting after
each annual meeting of stockholders shall elect an officer for each position
created by resolution of the board of directors, except that the initial
officers of the Corporation may be elected by the board of directors at any time
prior to the first annual meeting of stockholders.
Section 3. Other Officers. The board of directors 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. Salaries. The salaries of all officers and agents of the
Corporation shall be fixed by or in the manner prescribed by the board of
directors.
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Section 5. Term of Office; Removal. 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 vote of a majority of
the board of directors. Any vacancy occurring in any office of the Corporation
shall be filled by or in the manner prescribed by the board of directors.
Section 6. Chairman. The Chairman shall preside at all meetings of the
stockholders and board of directors.
Section 7. Chief Executive Officer. The Chief Executive Officer shall
have general supervisory management over the business of the Corporation, shall
report to the board of directors, and shall see that all orders and resolutions
of the board of directors are carried into effect, all subject to the general
control of the board of directors. In the absence of the Chairman for any
reason, including the failure of the board of directors to elect a Chairman, or
in the event of the Chairman's inability or refusal to act, the Chief Executive
Officer shall have all the powers of and be subject to all the restrictions upon
the Chairman.
Section 8. President. The President shall be responsible for the active
management of the business of the corporation, and shall perform such other
duties as may be prescribed by the board of directors or the Chief Executive
Officer. In the absence of the Chief Executive Officer for any reason, including
the failure of the board of directors to elect a Chief Executive Officer or in
the event of the Chief Executive Officer's inability or refusal to act, the
President shall have all the powers of and be subject to all the restrictions
upon the Chief Executive Officer.
Section 9. Vice President. The Vice President, or if there be more than
one, the Vice Presidents 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 both the President and the Chief Executive Officer for any
reason, including the failure of the board of directors to elect a President or
a Chief Executive Officer or in the event of such officers' inability or refusal
to act, perform the duties of the President and, when so acting, 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
board of directors or President may from time to time prescribe.
Section 10. Secretary. The Secretary shall attend all meetings of the
stockholders and all meetings of the board of directors and record all the
proceedings of the meetings of the stockholders 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. The Secretary shall give, 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 President. The Secretary shall have custody of the
corporate seal of the Corporation and shall have authority to affix the same to
any instrument requiring it, and when so affixed, it may be attested by his
signature. The
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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.
Section 11. 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 for any reason, including the
failure of the board of directors to elect a Secretary or in the event of the
Secretary's inability or refusal to act, perform the duties and exercise the
powers of the Secretary and perform such other duties and have such other powers
as the board of directors or President may from time to time prescribe. Any
Assistant Secretary shall have authority to affix the corporate seal and attest
by his signature to the same extent as the Secretary.
Section 12. 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 monies and other valuable effects in the name and to the credit of
the Corporation as ordered by the board of directors or the President. The
Treasurer shall disburse the funds of the Corporation as may be ordered by the
board of directors or the President, taking proper vouchers for such
disbursements, and shall render to the President and 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.
Section 13. Assistant Treasurer. The Assistant Treasurer, or if there 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 for any reason, including the
failure of the board of directors to elect a Treasurer or in the event of the
Treasurer's inability or refusal to act, perform the duties and exercise the
powers of the Treasurer and perform such other duties and have such other powers
as the board of directors or President may from time to time prescribe.
Section 14. Execution of Documents. All deeds, mortgages, bonds,
contracts, and other instruments may be executed on behalf of the Corporation by
the President, the Chief Executive Officer, or by any Vice President (unless
such power is restricted by board resolution), or by any other person or persons
designated from time to time by the board of directors.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. General. Every holder of stock in the Corporation shall be
entitled to have a certificate, signed by, or signed in the name of the
Corporation by, the Chairman, the President or a Vice President and either the
Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary
of the Corporation, certifying the number of shares owned by the stockholder in
the Corporation.
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Section 2. Facsimile. Any or all of the signatures on the certificates
may be a 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 were such officer, transfer agent or registrar at the date of issue.
Section 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 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
or the issuance of such new certificate.
Section 4. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares in compliance with
the requirements of Section 8-401 of Title 6 of the Delaware Code Annotated, as
amended, 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 5. Fixing Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to 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, in
advance, a record date, which shall not be more than sixty nor less than ten
days before the date of a stockholders meeting, nor more than sixty days prior
to the date of the payment of such dividends, the distribution of such rights,
the exercise of such rights or the taking of any other lawful action. If no
record date is fixed, the record date for determining stockholders (a) entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; provided, however, that Section 11 of Article II
hereof shall control with respect to fixing the record date for purposes of
determining stockholders entitled to express consent to corporate action in
writing without a meeting where no prior action by the board of directors is
necessary, and (b) for any other purpose shall be the close of business on the
day on which the board of directors adopts the resolution relating thereto. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
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Section 6. Registered Stockholders. The Corporation shall be entitled to
treat the record holder of any shares of the Corporation as the owner thereof
for all purposes, including all rights deriving from such shares, and shall not
be bound to recognize any equitable or other claim to, or interest in, such
shares or rights deriving from such shares, on the part of any other person,
including, but without limiting the generality thereof, a purchaser, assignee or
transferee of such shares or rights deriving from such shares, unless and until
such purchaser, assignee, transferee or other person becomes the record holder
of such shares, whether or not the Corporation shall have either actual or
constructive notice of the interest of such purchaser, assignee, transferee or
other person. Any such purchaser, assignee, transferee or other person shall not
be entitled to receive notice of the meetings of stockholders, to vote at such
meetings, to examine a complete list of the stockholders entitled to vote at
meetings, or to own, enjoy, and exercise any other property or rights deriving
from such shares against the Corporation, until such purchaser, assignee,
transferee or other person has become the record holder of such shares.
Section 7. Stockholder's Rights of Inspection. Any stockholder, in person
or by attorney or other agent, shall upon written demand under oath stating the
purpose thereof, have the right during the usual hours for business to inspect
for any proper purpose the Corporation's stock ledger, a list of its
stockholders, and its other books and records, and to make copies or extracts
therefrom. A proper purpose shall mean a purpose reasonably related to such
person's interest as a stockholder. In every instance where an attorney or other
agent shall be the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing which
authorizes the attorney or other agent to so act on behalf of the stockholder.
The demand under oath shall be directed to the Corporation at its registered
office in the State of Delaware or at its principal place of business. As used
in this Section, "stockholder" means a stockholder of record.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation, 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.
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 sole 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 2. Voting Securities of Other Corporations. The Chairman shall
have the authority to vote on behalf of the Corporation the securities of any
other
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corporation, which are owned or held by the Corporation and may attend meetings
of stockholders or execute and deliver proxies for such purpose.
Section 3. Contracts, Checks, Notes, Bank Accounts, Etc. All contracts
and agreements authorized by the board of directors, and all checks, drafts,
notes, bonds, bills of exchange and orders for the payment of money shall be
signed by at least one officer of the Corporation or by such other number of
officer or officers or employee or employees as the board of directors may from
time to time designate.
Section 4. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation or
otherwise as the board of directors or the Chief Executive Officer, the
President or the Treasurer shall direct in such banks, trust companies or other
depositories as the board of directors may select, or as may be selected by any
officer or officers or agent or agents of the Corporation to whom power in that
respect shall have been delegated by the board of directors. For the purpose of
deposit and collection for the account of the Corporation, checks, drafts and
other orders for the payment of money which are payable to the order of the
Corporation may be endorsed, assigned and delivered by any officer of the
Corporation.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be as
determined by the board of directors.
Section 6. Seal. The corporate seal, if any, shall have inscribed thereon
the name of the Corporation, the year of its organization, the words "Corporate
Seal, Delaware," and such words and figures as the board of directors may
approve and adopt. The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
Section 7. Form of Records. Any records maintained by the Corporation in
the regular course of its business, including its stock ledger, books of
account, and minute books, may be kept on, or by means of, or be in the form of,
any information storage device or method, provided, that the records so kept can
be converted into clearly legible paper form within a reasonable time. The
Corporation shall so convert any records so kept upon the request of any person
entitled to inspect the same.
ARTICLE VIII
INTERESTED OFFICERS OR DIRECTORS
No contract or transaction between this Corporation and one or more of
its directors or officers, or between this 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 or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
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(a) The material facts as to his 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 or committee in good faith authorizes the contract
or transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(b) The material facts as to his 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
(c) 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.
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
authorized the contract or transaction.
ARTICLE IX
AMENDMENTS
These bylaws may be altered or repealed, subject to any provisions which
might pertain in the Certificate of Incorporation, by majority vote of the stock
outstanding at the annual meeting or at any special meeting of stockholders (or
pursuant to the terms of Section 11 of Article II hereof) or by resolution
adopted by a majority vote of the board at any regular or special meeting of the
board.
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