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EXHIBIT 4.2
RESTATED BYLAWS
of
ASSOCIATED MATERIALS INCORPORATED
As Amended and Restated as of May 24, 2001
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TABLE OF CONTENTS
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PAGE
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ARTICLE I OFFICES......................................................1
1.1. Registered Office and Agent......................................1
1.2. Other Offices....................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS.....................................1
2.1. Annual Meeting...................................................1
2.2. Special Meeting..................................................1
2.3. Place of Meetings................................................2
2.4. Notice...........................................................2
2.5. Notice of Stockholder Business...................................2
2.6. Inspectors.......................................................3
2.7. Order of Business................................................3
2.8. Nomination of Director Candidates................................3
2.9. Substitution of Nominees.........................................4
2.10. Compliance with Procedures.......................................4
2.11. Voting List......................................................4
2.12. Quorum...........................................................5
2.13. Majority Vote; Withdrawal of Quorum..............................5
2.14. Method of Voting; Proxies........................................5
2.15. Record Date......................................................6
2.16. Chairman of Stockholders' Meetings...............................6
ARTICLE III DIRECTORS....................................................6
3.1. Management.......................................................6
3.2. Powers...........................................................6
3.3. Number, Election and Term........................................6
3.4. Newly Created Directorships and Vacancies........................7
3.5. Meetings.........................................................7
3.6. Notices..........................................................7
3.7. Quorum; Majority Vote............................................7
3.8. Procedure........................................................7
3.9. Presumption of Assent............................................8
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<Table>
3.10. Compensation.....................................................8
ARTICLE IV COMMITTEES...................................................8
4.1. Designation of Committees........................................8
4.2. Committee Powers and Authority...................................8
4.3. Committee Procedures.............................................9
ARTICLE V NOTICE.......................................................9
5.1. Method...........................................................9
5.2. Waiver...........................................................9
ARTICLE VI OFFICERS.....................................................9
6.1. Number; Titles; Term of Office...................................9
6.2. Removal.........................................................10
6.3. Vacancies.......................................................10
6.4. Authority.......................................................10
6.5. Compensation....................................................10
6.6. Chairman of the Board...........................................10
6.7. Chief Executive Officer.........................................10
6.8. President.......................................................10
6.9. Vice Presidents.................................................10
6.10. Secretary.......................................................11
6.11. Treasurer.......................................................11
6.12. General Counsel.................................................11
6.13. Appointed Officers..............................................11
ARTICLE VII INDEMNIFICATION.............................................11
7.1. Suits By Third Parties..........................................11
7.2. Suits in the Name of the Corporation............................12
7.3. Successful Defense..............................................12
7.4. Determination to Indemnify......................................12
7.5. Provisions Nonexclusive.........................................13
7.6. Insurance.......................................................13
7.7. Surviving Corporation...........................................13
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<Table>
7.8. Continuing Indemnification......................................13
ARTICLE VIII STOCK CERTIFICATES AND STOCKHOLDERS.........................13
8.1. Certificates for Shares.........................................13
8.2. Replacement of Lost or Destroyed Certificates...................14
8.3. Transfer of Shares..............................................14
8.4. Registered Stockholders.........................................14
8.5. Regulations.....................................................14
8.6. Legends.........................................................14
ARTICLE IX MISCELLANEOUS PROVISIONS....................................14
9.1. Dividends.......................................................14
9.2. Reserves........................................................15
9.3. Books and Records...............................................15
9.4. Fiscal Year.....................................................15
9.5. Seal............................................................15
9.6. Resignation.....................................................15
9.7. Securities of Other Corporations................................15
9.8. Amendment of Bylaws.............................................15
9.9. Telephonic Meetings.............................................15
9.10. Headings........................................................16
9.11. References......................................................16
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5
RESTATED BYLAWS
of
ASSOCIATED MATERIALS INCORPORATED
A Delaware Corporation
PREAMBLE
These Bylaws are subject to, and governed by, the General Corporation
Law of the State of Delaware (the "DGCL") and the Restated Certificate of
Incorporation of Associated Materials Incorporated (the "Corporation"). In the
event of a direct conflict between the provisions of these Bylaws and the
mandatory provisions of the DGCL or the provisions of the Restated Certificate
of Incorporation of the Corporation (the "Restated Certificate of
Incorporation"), such provisions of the DGCL or the Restated Certificate of
Incorporation, as the case may be, will be controlling.
ARTICLE I
OFFICES
1.1. Registered Office and Agent. The registered office and registered
agent of the Corporation shall be as designated from time to time by the
appropriate filing by the Corporation in the office of the Secretary of State of
the State of Delaware.
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
in its discretion may from time to time determine or as the business of the
Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. Annual Meeting. An annual meeting of stockholders of the
Corporation shall be held each calendar year on such date and at such time as
shall be designated from time to time by the Board of Directors and stated in
the notice of the meeting. At such meeting, the stockholders shall elect
Directors and transact such other business as properly may be brought before the
meeting.
2.2. Special Meeting. A special meeting of the stockholders may be
called at any time by the Chairman of the Board, the Chief Executive Officer or
a majority of the Board of Directors or as otherwise provided by the Restated
Certificate of Incorporation; provided, however, that until such time as The
Prudential Insurance Company of America ("Prudential") and its Affiliates (as
defined) are the record holders of shares of Common Stock and/or Class B Common
Stock representing less than 5% of the then issued and outstanding shares of
Common
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Stock, on a Fully-Diluted Basis (as defined) that, when acquired by Prudential
and/or its Affiliates, had not been registered pursuant to the Securities Act of
1933, as amended, the holders of 25% or more of the outstanding Common Stock
shall have the right to call a special meeting of stockholders solely for the
purpose of removing any Director of the Corporation, filling any vacancy created
thereby or amending these Bylaws. Only such business shall be transacted at a
special meeting as may be stated or indicated in the notice of such meeting. For
the purpose of this Section 2.2 (i) the term "Affiliate" shall mean a person
that directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such person; (ii) the term
"control" shall mean the power to cause the election of a majority of members of
the board of directors or other governing body of any entity; and (iii) the term
"Fully-Diluted Basis" shall mean after giving effect to the exercise, conversion
and exchange of all securities or other rights then exercisable or convertible
into or exchangeable for Common Stock (including, without limitation, any
subscriptions, options, warrants, conversions or other rights pursuant to any
agreements, arrangements or commitments of any kind obligating the corporation
to issue or sell any shares of Common Stock or any securities exercisable or
convertible into or exchangeable for Common Stock).
2.3. Place of Meetings. Any meeting of the stockholders may be held at
such time and such place, either within or without the State of Delaware, as
shall be designated by the Board of Directors, as designated in the notice or
waiver of notice of such meeting. If no designation is made by the Board of
Directors in the notice or waiver of notice, the place of the meeting shall be
the principal office of the Corporation. Notwithstanding the foregoing
provisions of this Section 2.3, any special meeting of stockholders that has
been called by the stockholders pursuant to Section 2.2 hereof, shall be held at
such time and such place as shall be designated by the stockholders in the
notice to the Corporation calling such meeting.
2.4. Notice. Written notice stating the place, date, and hour of each
meeting of the stockholders and the purpose or purposes for which the meeting is
called, shall be given not less than 10 nor more than 60 calendar days before
the date of the meeting to each stockholder entitled to vote at such meeting.
Such further notice shall be given as may be required by law. Any previously
scheduled meeting of the stockholders (other than a special meeting of
stockholders called by the stockholders pursuant to Section 2.2 hereof) may be
postponed by resolution of the Board of Directors upon public notice given prior
to the date previously scheduled for such meeting of stockholders.
2.5. Notice of Stockholder Business. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (i) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (ii) otherwise
properly brought before the meeting by or at the direction of Directors
constituting a majority of the total number of Directors that the Corporation
would have if there were no vacancies on the Board of Directors, or (iii)
otherwise properly be requested to be brought before the meeting by a
stockholder. For business to be properly requested to be brought before an
annual meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation, not less than 80 calendar days
prior to the meeting; provided, however, that in the event that the date of
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the meeting is not publicly announced by the Corporation by mail, press release
or otherwise more than 90 calendar days prior to the meeting, notice by the
stockholder to be timely must be delivered to the Secretary of the Corporation
not later than the close of business on the 10th calendar day following the day
on which such announcement of the date of the meeting was communicated to
stockholders. A 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. Notwithstanding anything in these Bylaws to the
contrary, no business shall be conducted at an annual meeting except in
accordance with the procedures set forth in this Section 2.5. The chairman of
the stockholders' meeting, as specified in Section 2.16 hereof, shall, if the
facts warrant, determine and declare at the meeting that business was not
properly brought before the meeting and in accordance with the provisions of
this Section 2.5, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall not
be transacted.
2.6. Inspectors. The Board of Directors shall appoint one or more
inspectors of election, which inspector or inspectors may include individuals
who serve the Corporation in other capacities, including, without limitation, as
officers, employees, agents or representatives of the Corporation, to act as
judges of the voting and to determine those entitled to vote at any
stockholders' meeting, or any adjournment thereof, in advance of such meeting,
but if the Board of Directors fails to make any such appointment or if an
appointee fails to serve, the chairman of the stockholders' meeting may appoint
substitute inspectors.
2.7. Order of Business. Unless otherwise determined by the Board of
Directors prior to the stockholders' meeting, the chairman of the stockholders'
meeting shall determine the order of business and shall have the authority in
his discretion to regulate the conduct of any such meeting, including, without
limitation, by imposing restrictions on the persons (other than stockholders of
the Corporation or their duly appointed proxies) who may attend any such
stockholders' meeting, whether any stockholder or his proxy may be excluded from
any stockholders' meeting based upon any determination by the chairman of the
stockholders' meeting, in his sole discretion, that any such person has unduly
disrupted or is likely to disrupt the proceedings thereat, and the circumstances
in which any person may make a statement or ask questions at any stockholders'
meeting.
2.8. Nomination of Director Candidates. Subject to the rights of
holders of Preferred Stock, if any, nominations for the election of Directors
may be made by the Board of Directors or a committee appointed by the Board of
Directors for such purpose or by any stockholder entitled to vote in the
election of Directors generally. However, any stockholder entitled to vote in
the election of Directors generally may nominate one or more persons for
election as Directors at a meeting only if written notice of such stockholder's
intent to make such nomination or nominations has been received by the Secretary
of the Corporation not less than 50 calendar days in advance of such meeting;
provided, however, that in the event that the date of the meeting was not
publicly announced by the Corporation by mail, press release or otherwise more
than 60 calendar days prior to the meeting, notice by the stockholder to be
timely must be delivered to
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the Secretary of the Corporation not later than the close of business on the
10th calendar day following the day on which such announcement of the date of
the meeting was communicated to stockholders. Each such notice shall set forth:
(i) the name and address of the stockholder who intends to make the nomination
and of the person or persons to be nominated; (ii) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote
for the election of Directors on the date of such notice and intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (iii) a description of all arrangements or understandings between
the stockholder and each nominee and any other person or persons (naming such
person or persons) pursuant to which the nomination or nominations are to be
made by the stockholder; (iv) such other information regarding each nominee
proposed by such stockholder as would be required to be included in a proxy
statement filed pursuant to the applicable rules of the Securities and Exchange
Commission, had the nominee been nominated, or intended to be nominated, by the
Board of Directors; and (v) the signed consent of each nominee to serve as a
Director of the Corporation if so elected.
Notwithstanding anything in these Bylaws to the contrary, in the event
that the number of Directors to be elected to the Board of Directors of the
Corporation is increased and there is no public announcement (i.e., disclosure
in a press release or in a document publicly filed with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(a) of the Securities
Exchange Act of 1934, as amended) naming all of the nominees for Director or
specifying the size of the increased Board of Directors made by the Corporation
at least 50 calendar days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this Section 2.8 shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th calendar day following the day on which such public
announcement is first made by the Corporation.
2.9. Substitution of Nominees. In the event that a person is validly
designated as a nominee in accordance with Section 2.8 hereof and shall
thereafter become unable or unwilling to stand for election to the Board of
Directors, the Board of Directors or the stockholder who proposed such nominee,
as the case may be, may designate a substitute nominee upon delivery, not fewer
than five calendar days prior to the date of the meeting for the election of
such nominee of a written notice to the Secretary setting forth such information
regarding such substitute nominee as would have been required to be delivered to
the Secretary pursuant to Section 2.8 hereof had such substitute nominee been
initially proposed as a nominee. Such notice shall include a signed consent to
serve as a Director of the Corporation, if elected, of each such substitute
nominee.
2.10. Compliance with Procedures. If the chairman of the stockholders'
meeting at which the election of Directors determines that a nomination of any
candidate for election as a Director at such meeting was not made in accordance
with the applicable provisions of Sections 2.8 and 2.9 hereof, such nomination
shall be void; provided, however, that nothing in Sections 2.8 and 2.9 hereof
shall be deemed to limit any rights of holders of Preferred Stock.
2.11. Voting List. At least 10 calendar days before each meeting of
stockholders, the Secretary shall prepare or cause to be prepared a complete
list of stockholders entitled to vote thereat, arranged in alphabetical order,
with the address of, and number of voting shares held by,
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each. For a period of 10 calendar days prior to such meeting, such list shall be
kept on file at a place within the city where the meeting is to be held, which
place shall be specified in the notice of meeting, or, if not so specified, at
the place where the meeting is to be held, which place shall be specified in the
notice of meeting, and shall be subject to inspection by any stockholder during
ordinary business hours for any purpose germane to the meeting. Such list shall
be produced at such meeting and kept at the meeting at all times during such
meeting, and shall be subject to inspection by any stockholder who is present.
2.12. Quorum. Except as otherwise provided by applicable law, the
Restated Certificate of Incorporation or these Bylaws, the holders of a majority
of the outstanding shares entitled to vote, present in person or by proxy at any
meeting of stockholders, shall constitute a quorum at such meeting; provided,
however, that when specified business is to be voted on by a class or series
voting as a class, the holders of a majority of the shares of such class or
series shall be required for the transaction of such business. If a quorum shall
not be present or represented at any meeting of stockholders, the stockholders
entitled to vote thereat who are present, in person or by proxy, or, if no
stockholder entitled to vote is present, any officer of the Corporation may
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At any adjourned
meeting at which a quorum shall be present, in person or by proxy, any business
may be transacted which may have been transacted at the original meeting had a
quorum been present; provided, however, that if the adjournment is for more than
30 calendar 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 adjourned meeting.
2.13. Majority Vote; Withdrawal of Quorum. When a quorum is present at
any meeting, the vote of the holders of a majority of the outstanding shares
entitled to vote who are present, in person or by proxy, shall decide any
question brought before such meeting, unless the question is one on which, by
express provision of applicable law, the Restated Certificate of Incorporation
or these Bylaws, a different vote is required, in which case such express
provision shall govern and control the decision of such question. The
stockholders present at a duly constituted meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.14. Method of Voting; Proxies. Except as otherwise provided in the
Restated Certificate of Incorporation, in any designation of rights of a series
of Preferred Stock pursuant to the Restated Certificate of Incorporation or by
applicable law, each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote at a meeting of stockholders.
Elections of Directors need not be by written ballot. At any meeting of
stockholders, every stockholder having the right to vote may vote either in
person or by a proxy executed in writing by the stockholder or by his duly
authorized attorney-in-fact. Each such proxy shall be filed with the Secretary
of the Corporation before or at the time of the meeting. No proxy shall be valid
after three years from the date of its execution, unless otherwise provided in
the proxy. If no date is stated on the proxy, such proxy shall be presumed to
have been executed on the date of the meeting at which it is to be voted. Each
proxy shall be revocable unless expressly provided therein to be irrevocable and
coupled with an interest sufficient in law to support an irrevocable power or
unless otherwise made irrevocable by law.
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2.15. Record Date. For the purpose of determining 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 in advance a date for any such
determination of stockholders, such date in any case to be not more than 60
calendar days and not less than 10 calendar days prior to such meeting, nor more
than 60 calendar days prior to any other action. If no record date is fixed: (i)
the record date for determining stockholders entitled 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 was held; and (ii) the
record date for determining stockholders for any other purpose shall be at 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.
2.16. Chairman of Stockholders' Meetings. The Chairman of the Board
shall serve as chairman of any meeting of stockholders and the Secretary shall
keep the records of each meeting of stockholders, and in the absence of either
such officer, that officer's duties shall be performed by the officer given the
authority to act for such absent officer under these Bylaws or by some other
person appointed by the Board of Directors.
ARTICLE III
DIRECTORS
3.1. Management. The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors, subject to the
restrictions imposed by applicable law, the Restated Certificate of
Incorporation or these Bylaws.
3.2. Powers. In addition to the powers and authority expressly
conferred by these Bylaws, the Board of Directors may exercise all such powers
of the Corporation and do all lawful acts and things as are not by applicable
law or the Restated Certificate of Incorporation or by these Bylaws directed or
required to be exercised or done by the stockholders.
3.3. Number, Election and Term. Except as otherwise fixed by, or
pursuant to the provisions of, the Restated Certificate of Incorporation
relating to the rights of the holders of any Preferred Stock to elect additional
Directors under specified circumstances, the number of the Directors of the
Corporation shall be fixed from time to time by the Board of Directors but shall
be no fewer than three. The Directors, other than those who may be elected by
the holders of Preferred Stock, shall be elected at each annual meeting of the
stockholders of the Corporation, by plurality vote by written ballot to hold
office for a term expiring at the immediately following annual meeting of
stockholders.
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3.4. Newly Created Directorships and Vacancies. Subject to the rights
of holders of Preferred Stock and except as provided in the Restated Certificate
of Incorporation, newly created directorships resulting from any increase in the
number of Directors and any vacancies on the Board of Directors resulting from
death, resignation, disqualification, removal or other cause shall be filled
only by the affirmative vote of a majority of the remaining Directors then in
office, even though less than a quorum of the Board of Directors. Any Director
elected in accordance with the preceding sentence shall hold office until the
next annual meeting of stockholders and until such Director's successor shall
have been elected and qualified. No decrease in the number of Directors
constituting the Board of Directors shall shorten the term of any incumbent
Director.
3.5. Meetings. Immediately after the adjournment of the annual meeting
of the stockholders each year, the Directors elected thereat shall, without
notice, convene the annual meeting of Directors for the organization of the
Board of Directors, the election of officers and members of committees and the
transaction of any other business which may properly come before such meeting.
If a quorum of the Board of Directors shall not be present, the Chairman of the
Board shall call a meeting for such purposes as promptly as is practicable.
Except as otherwise provided in this Section 3.5, Directors may hold their
regular and special meetings at such times and places and have one or more
offices and keep the books of the Corporation at such places as the Board of
Directors determines.
3.6. Notices. No notice of regular meetings of the Board of Directors
need be given. Special meetings of the Board of Directors may be called by the
Chairman of the Board, the Chief Executive Officer or the President upon notice
to each Director, given either in person or by mail, telephone, telegram,
facsimile or similar medium of communication; special meetings shall be called
by the Chairman of the Board, the Chief Executive Officer or the Secretary on
like notice, on the written request of a majority of the Directors. At least 24
hours' notice of special meetings shall be given to each Director.
Notwithstanding Article V hereto, for purposes of this Section 3.6, if notice is
sent by mail, notice is deemed delivered on the date actually received.
3.7. Quorum; Majority Vote. At all meetings of the Board of Directors,
a majority of the Directors fixed in the manner provided in these Bylaws shall
constitute a quorum for the transaction of business, but if at any meeting of
the Board of Directors there be less than a quorum present, a majority of those
present or any Director solely present may adjourn the meeting from time to time
without further notice if the time and place to which the meeting is adjourned
are announced at the meeting. At any adjourned meeting at which a quorum is
present, any business may be transacted that may have been transacted at the
meeting originally called. The act of a majority of the Directors at a meeting
at which a quorum is present shall be the act of the Board of Directors, unless
the act of a greater number is required by applicable law, the Restated
Certificate of Incorporation or these Bylaws.
3.8. Procedure. At meetings of the Board of Directors, business shall
be transacted in such order as the Board of Directors may determine from time to
time. The Chairman of the Board, if such office has been filled, and, if not or
if the Chairman of the Board is absent or otherwise unable to act, a chairman
shall be chosen by the Board of Directors from among the Directors present. The
Secretary of the Corporation shall act as the secretary of the meetings of
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the Board of Directors unless the Board of Directors appoints another person to
act as secretary of the meeting. The Board of Directors shall keep regular
minutes of its proceedings which shall be placed in the minute book of the
Corporation.
3.9. Presumption of Assent. A Director of the Corporation who is
present at the meeting of the Board of Directors at which action on any
corporate matter is taken shall be presumed to have assented to the action
unless his dissent shall be entered in the minutes of the meeting or unless he
shall file his written dissent to such action with the person acting as
secretary of the meeting before the adjournment thereof or shall forward any
dissent by certified or 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.
3.10. Compensation. The Board of Directors shall have authority to fix
the compensation, including fees and reimbursement of expenses, paid to
Directors for attendance at regular or special meetings of the Board of
Directors, any committee thereof or for any other services to the Corporation;
provided, however, that nothing contained in these Bylaws shall be construed to
preclude any Director from serving the Corporation in any other capacity or
receiving compensation therefor.
ARTICLE IV
COMMITTEES
4.1. Designation of Committees. The Board of Directors may establish
committees for the performance of delegated or designated functions to the
extent permitted by law. Each committee shall consist of one or more Directors
of the Corporation.
4.2. Committee Powers and Authority. The Board of Directors may
provide, by resolution or by amendment to these Bylaws, that a committee 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 a committee may not exercise the power or authority of the Board
of Directors in reference to amending the Restated 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 pursuant to the Restated Certificate of Incorporation, fix the
designations and any of the preferences or rights of shares of authorized
Preferred Stock of the Corporation relating to dividends, redemption,
dissolution, any distribution of property or assets of the Corporation, or the
conversion into, or the exchange of shares for, shares of any other class or
classes or any other series of the same or 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), adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease, or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these Bylaws; and, unless the
resolution expressly so provides, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
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4.3. Committee Procedures. Except as may be otherwise provided in a
resolution or resolutions duly adopted by the Board of Directors, a majority of
the members of a committee shall constitute a quorum and a majority vote of the
members at a meeting at which a quorum is present shall be the act of the
committee. A committee shall keep minutes of its proceedings, and shall report
its proceedings to the Board of Directors when required or when requested by a
Director to do so.
ARTICLE V
NOTICE
5.1. Method. Whenever by applicable law, the Restated Certificate of
Incorporation or these Bylaws, notice is required to be given to any Director,
committee member or stockholder and no provision is made as to how such notice
shall be given, such provision shall not be construed to mean personal notice,
but any such notice may be given (i) in writing, by mail, postage prepaid,
addressed to such Director, committee member or stockholder at his address as it
appears on the books or, in the case of a stockholder, the stock transfer
records of the Corporation, or (ii) by any other method permitted by applicable
law (including but not limited to telegram). Except as set forth in Section 3.6
hereof, any notice required or permitted to be given by mail shall be deemed to
be delivered and given at the time transmitted with all charges prepaid and
addressed as aforesaid.
5.2. Waiver. Whenever any notice is required to be given to any
Director, committee member or stockholder of the Corporation by applicable law,
the Restated Certificate of Incorporation or these Bylaws, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether before
or after the time stated therein shall be equivalent to the giving of such
notice. Attendance of a Director, committee member or stockholder at a meeting
shall constitute a waiver of notice of such meeting, except where such person
attends for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business on the ground that the meeting is not
lawfully called or convened.
ARTICLE VI
OFFICERS
6.1. Number; Titles; Term of Office. The elected officers of the
Corporation may include a Chairman of the Board, Chief Executive Officer,
President, one or more Vice Presidents, a Secretary, a Treasurer, a General
Counsel and such other officers as the Board of Directors may from time to time
elect. The Chairman of the Board shall be chosen from the Directors. Each
officer shall hold office until his successor shall have been duly elected and
shall have qualified, until his death or until he shall resign or shall have
been removed in the manner hereinafter provided. Any two or more offices may be
held by the same person. None of the officers need be a stockholder or a
Director of the Corporation or a resident of the State of Delaware.
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6.2. Removal. Any elected officer may be removed by the Board of
Directors whenever in its judgment the best interest of the Corporation will be
served thereby. No elected officer shall have any contractual rights against the
Corporation for compensation by virtue of such election beyond the date of the
election of his successor, his death, his resignation or his removal, whichever
event shall first occur, except as otherwise provided in an employment contract
or under an employee benefit plan.
6.3. Vacancies. Any vacancy occurring in an elected office of the
Corporation (by death, resignation, removal or otherwise) may be filled by the
Board of Directors.
6.4. Authority. Elected officers shall have such authority and perform
such duties in the management of the Corporation as are provided in these Bylaws
or as may be determined by resolution of the Board of Directors not inconsistent
with these Bylaws.
6.5. Compensation. The compensation of elected officers shall be fixed
from time to time by the Board of Directors or a committee thereof.
6.6. Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the stockholders and of the Board of Directors. He shall make
reports to the Board of Directors and the stockholders, and shall perform all
such other duties as are properly required of him by the Board of Directors. He
shall see that all orders and resolutions of the Board of Directors and of any
committee thereof are carried into effect.
6.7. Chief Executive Officer. The Chief Executive Officer, subject to
the direction and control of the Board of Directors, shall have general and
active management of the business of the Corporation. The Chief Executive
Officer may negotiate for, approve, and execute contracts, deeds and other
instruments on behalf of the Corporation. The Chief Executive Officer, in the
absence of the Chairman of the Board or in the event of his disability,
inability or refusal to act, shall perform the duties and exercise the powers of
the Chairman of the Board. The Chief Executive Officer shall perform such
additional functions and duties as the Board of Directors may from time to time
prescribe.
6.8. President. The President, subject to the direction and control of
the Chairman of the Board, the Chief Executive Officer or the Board of
Directors, shall manage the business of the Corporation. The President may
execute contracts, deeds and other instruments on behalf of the Corporation. The
President, in the absence of the Chief Executive Officer or in the event of his
disability, inability or refusal to act, shall perform the duties and exercise
the power of the Chief Executive Officer. Upon the death, absence or disability
of the President, the Chief Executive Officer shall perform or delegate the
duties and powers of the President.
6.9. Vice Presidents. Each Vice President shall have such powers and
perform such duties as from time to time may be assigned to him by the Board of
Directors or be delegated to him by the President. The Board of Directors may
assign to any Vice President general supervision and charge over any territorial
or functional division of the business and affairs of the Corporation. In the
absence or incapacity of the President, the powers, duties, and functions of the
President shall be temporarily performed and exercised by such one of the Vice
Presidents as shall be designated by the Board of Directors.
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6.10. Secretary. The Secretary shall give, or cause to be given, notice
of all meetings of stockholders and Board of Directors and all other notices
required by applicable law or by these Bylaws, and in case of his absence or
refusal or neglect so to do, any such notice may be given by an person thereunto
directed by the Chairman of the Board or the President or by the Board of
Directors, upon whose request the meeting is called as provided in these Bylaws.
He shall record all the proceedings of the meetings of the Board of Directors,
any committees thereof and the stockholders of the Corporation in a book to be
kept for that purpose, and shall perform such other duties as may be assigned to
him by the Board of Directors or the President. He shall have the custody of the
seal of the Corporation and shall affix the same to all instruments requiring
it, when authorized by the Board of Directors or the President, and attest to
the same.
6.11. Treasurer. The Treasurer shall have the custody of the corporate
funds and securities and shall deposit all moneys and other valuables in the
name and to the credit of the Corporation in such depositaries as may be
designated by the Board of Directors. The Treasurer shall disburse the funds and
pledge the credit of the Corporation as may be ordered by the Board of
Directors, the Chairman of the Board or the President, taking proper vouchers
for any such disbursements. The Treasurer shall render to the Chairman of the
Board, the President and the Board of Directors, as and when requested by them,
or any of them, an account of all his transactions as Treasurer and of the
financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond for the faithful discharge of
his duties in such amount and with such surety as the Board of Directors shall
prescribe.
6.12. General Counsel. The General Counsel shall be the chief legal
officer of the Corporation. He shall provide legal counsel and advice to the
Board of Directors and to the officers with respect to compliance with
applicable laws and regulations. He shall also provide or obtain legal defense
of the Corporation. He shall render to the Board of Directors, the Chairman of
the Board and the President, as and when requested by them, or any of them, a
report on the status of claims against, and pending litigation of, the
Corporation.
6.13. Appointed Officers. The Chairman of the Board may appoint such
Assistant Secretaries, Assistant Treasurers and other officers and agents as the
Chairman of the Board shall deem necessary or proper in the conduct of the
affairs of the Corporation with such designations, titles, seniority, duties and
responsibilities as he shall deem advisable. All officers appointed by the
Chairman of the Board shall perform their duties under the direction of the
Chairman of the Board and shall receive compensation as from time to time fixed
by the Chairman of the Board and shall hold their offices at the pleasure of
either the Chairman of the Board or the Board of Directors. The Chairman of the
Board shall report appointments of officers pursuant to this Section 6.13 to the
Board of Directors.
ARTICLE VII
INDEMNIFICATION
7.1. Suits By Third Parties. The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or
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in the right of the Corporation) by reason of the fact that he is or was a
Director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, association or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, that he had
reasonable cause to believe that his conduct was unlawful.
7.2. Suits in the Name of the Corporation. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a Director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, association or other enterprise,
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the
extent that the Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery of the State of Delaware or such other court shall
deem proper.
7.3. Successful Defense. To the extent that any person referred to in
Sections 7.1 and 7.2 hereof has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in such Sections, or in
defense or any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection therewith.
7.4. Determination to Indemnify. Any indemnification under Sections 7.1
and 7.2 hereof (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the Director or officer is proper in the circumstances because he has met the
applicable standard of conduct set forth therein. Such determination shall be
made (i) by the Board of Directors by a majority vote of a quorum consisting of
Directors who were not parties to such action, suit or proceeding, (ii) if such
quorum is not obtainable or, even if obtainable, a quorum of disinterested
Directors so directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders.
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7.5. Provisions Nonexclusive. The indemnification provided by, or
granted pursuant to, this Article VII shall not be deemed exclusive of any other
rights to which any person seeking indemnification may be entitled, under the
Restated Certificate of Incorporation or under any other bylaw, agreement,
insurance policy, vote of stockholders or disinterested Directors, applicable
law or otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
7.6. Insurance. By action of the Board of Directors, notwithstanding
any interest of the Directors in the action, the Corporation shall have power to
purchase and maintain insurance, in such amounts as the Board of Directors deems
appropriate, on behalf of any person who is or was a Director or officer of the
Corporation, or is or was serving at the request of the Corporation as director,
officer, employee or agent of another Corporation, partnership, joint venture,
trust, association or other enterprise, against any liability asserted against
him and incurred by him in any such capacity or arising out of his status as
such, whether or not he is indemnified against such liability or expense under
the provisions of this Article VII and whether or not the Corporation would have
the power or would be required to indemnify him against such liability under the
provisions of this Article VII or of the DGCL or by any other applicable law.
7.7. Surviving Corporation. The Board of Directors may provide by
resolution that references to "the Corporation" in this Article VII shall
include, in addition to this Corporation, all constituent corporations absorbed
in a merger with the Corporation so that any person who was a director or
officer of such a constituent corporation or is or was serving at the request of
such constituent corporation as a director, employee or agent of another
corporation, partnership, joint venture, trust, association or other entity
shall stand in the same position under the provisions of this Article VII with
respect to this Corporation as he would if he had served this Corporation in the
same capacity or is or was so serving such other entity at the request of this
Corporation, as the case may be.
7.8. Continuing Indemnification. The indemnification provided by, or
granted pursuant to, this Article VII shall continue as to a person who has
ceased to be a Director or officer and shall inure to the benefit of the heirs,
executors, and administrators of such person.
ARTICLE VIII
STOCK CERTIFICATES AND STOCKHOLDERS
8.1. Certificates for Shares. Certificates for shares of stock of the
Corporation shall be in such form as shall be approved by the Board of
Directors. The certificates shall be signed by the Chairman of the Board or the
President or a Vice President and also by the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer. Any and all signatures on
the certificate may be a facsimile and each such certificate may be sealed with
the seal of the Corporation or a facsimile thereof. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed upon a certificate has 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.
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The certificates shall be consecutively numbered and shall be entered in the
books of the Corporation as they are issued and shall exhibit the holder's name
and the number of shares.
8.2. Replacement of Lost or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates representing shares of
stock be issued in place of a certificate or certificates representing shares of
stock theretofore issued by the Corporation and alleged to have been lost or
destroyed upon the making of an affidavit of that fact by the person claiming
the certificate or certificates representing shares of stock that was or were
lost or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may be in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost 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 with a
surety or sureties satisfactory to the Corporation in such sum as it may direct
as indemnity against any claim or expense resulting from a claim, that may be
made against the Corporation with respect to the certificate or certificates
alleged to have been lost or destroyed.
8.3. Transfer of Shares. Shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment, or authority to transfer, the Corporation or its
transfer agent shall issue a new certificate to the person entitled thereto,
cancel the old certificate, and record the transaction upon its books.
8.4. Registered Stockholders. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder in fact
thereof and, accordingly, shall not be bound to recognize any equitable or other
claim 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 law.
8.5. Regulations. The Board of Directors shall have the power and
authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer and registration or the replacement of
certificates for shares of stock of the Corporation.
8.6. Legends. The Board of Directors shall have the power and authority
to provide the certificates representing shares of stock bear such legends as
the Board of Directors deems appropriate to assure that the Corporation does not
become liable for violations of federal or state securities laws or other
applicable law.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Dividends. Subject to provisions of applicable law and the
Restated Certificate of Incorporation, dividends may be declared by the Board of
Directors at any time and from time to time and may be paid in cash, in property
or in shares of stock of the Corporation. Such declaration and payment shall be
at the discretion of the Board of Directors.
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9.2. Reserves. There may be created by the Board of Directors out of
funds of the Corporation legally available therefor such reserve or reserves as
the Directors from time to time, in their discretion, consider proper to provide
for contingencies, to equalize dividends, to repair or maintain any property of
the Corporation, or for such other purpose as the Board of Directors shall
consider beneficial to the Corporation, and the Board of Directors may modify or
abolish any such reserve in the manner in which it was created.
9.3. Books and Records. The Corporation shall keep correct and complete
books and records of account, shall keep minutes of the proceedings of its
stockholders, Board of Directors, and any committee of the Board of Directors,
and shall keep at its registered office or principal place of business or at the
office of its transfer agent or registrar, a record of its stockholders, giving
the names and addresses of all stockholders and the number and class of the
shares held by each.
9.4. Fiscal Year. The fiscal year of the Corporation shall be fixed by
the Board of Directors; provided, however, that if such fiscal year is not fixed
by the Board of Directors and the Board of Directors does not defer
determination of the fiscal year, the fiscal year shall be the calendar year.
9.5. Seal. The seal of the Corporation shall be such as from time to
time may be approved by the Board of Directors.
9.6. Resignation. Any Director, committee member or officer may resign
by so stating at any meeting of the Board of Directors or by giving written
notice to the Board of Directors, the Chairman of the Board, the Chief Executive
Officer, the President or the Secretary. Such resignation shall take effect at
the time specified therein, or immediately if no time is specified therein.
Unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
9.7. Securities of Other Corporations. The Chairman of the Board, the
Chief Executive Officer, the President or any Vice President of the Corporation
shall have the power and authority to transfer, endorse for transfer, vote, and
take any other action with respect to any securities of another issuer which may
be held or owned by the Corporation and to make, execute, and deliver any
waiver, proxy or consent with respect to any such securities.
9.8. Amendment of Bylaws. These Bylaws may be altered, amended or
repealed: (i) at any meeting of the Board of Directors at which a quorum is
present by the affirmative vote of a majority of the Directors present at any
such meeting, provided notice of the proposed alteration, amendment or repeal is
contained in the notice of the meeting; or (ii) at any meeting of the
stockholders at which a quorum is present, in person or by proxy, by the
affirmative vote of a majority of the shares represented and entitled to vote
thereat, provided notice of the proposed alteration, amendment or repeal is
contained in the notice of the meeting.
9.9. Telephonic Meetings. The Board of Directors, and members of any
committee thereof, may participate in and hold a meeting of the Board of
Directors or such committee by means of a conference telephone or similar
communications equipment by means of which persons participating in the meeting
can hear each other, and participation in such a meeting shall
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constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
9.10. Headings. The headings used in these Bylaws have been inserted
for administrative convenience only and do not constitute matter to be construed
in interpretation.
9.11. References. Whenever in these Bylaws the singular number is used,
the same shall include the plural where appropriate, and words of any gender
should include each other gender where appropriate.
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