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EXHBIT 3.2(j)
BYLAWS
OF
WHC VININGS CORPORATION
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TABLE OF CONTENTS
BYLAWS
OF
WHC VININGS CORPORATION
Page
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ARTICLE I - OFFICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Registered Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Other Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II - MEETINGS OF THE STOCKHOLDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1. Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 3. Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 4. Notice of Annual or Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 5. Business at Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 6. Quorum of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 7. Act of Stockholders' Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 8. Voting of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 9. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 10. Voting List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 11. Action by Written Consent Without a Meeting . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III - BOARD OF DIRECTORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1. Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2. Number of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3. Election and Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 5. Resignation and Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6. Compensation of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 7. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV - MEETINGS OF THE BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1. First Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 4. Business at Regular or Special Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5. Quorum of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 6. Act of Directors' Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 7. Action by Unanimous Written Consent Without a Meeting . . . . . . . . . . . . . . . . . . . 6
Section 8. Interested Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V - COMMITTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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ARTICLE VI - NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 1. Methods of Giving Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2. Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3. Attendance as Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VII - DIRECTORS' ACTION WITHOUT A MEETING BY USE
OF CONFERENCE TELEPHONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VIII - OFFICERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1. Executive Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2. Election and Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3. Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Term, Removal and Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5. Chief Executive Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 6. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 7. Vice Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 8. Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 9. Assistant Secretaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 10. Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 11. Assistant Treasurer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 12. Officers' Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IX - CERTIFICATES FOR SHARES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 1. Certificates Representing Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 2. Restriction on Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3. Voting Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4. Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5. Lost, Stolen or Destroyed Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 6. Closing of Transfer Books and Fixing Record Date . . . . . . . . . . . . . . . . . . . . . 12
Section 7. Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE X - GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 2. Reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3. Negotiable Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 5. Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE XI - INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 1. Mandatory Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 2. Mandatory Advancement of Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE XII - AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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BYLAWS
OF
WHC VININGS CORPORATION
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office shall be
located in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The corporation also may 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 as the business of the
corporation may require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
Section 1. Place of Meetings. All meetings of the stockholders
for the election of directors or for any other proper purpose shall be held at
such place either within or without the State of Delaware as the Board of
Directors may from time to time designate, as stated in the notice of such
meeting or a duly executed waiver of notice thereof.
Section 2. Annual Meeting. An annual meeting of the
stockholders shall be held at such time and date as the Board of Directors may
determine. At such meeting the stockholders entitled to vote thereat shall
elect a Board of Directors and may transact such other business as properly may
be brought before the meeting.
Section 3. Special Meeting. Special meetings of the
stockholders may be called by the Chairman of the Board of Directors, the
President, the Board of Directors or the holders of not less than ten percent
of all shares entitled to vote at the meeting.
Section 4. Notice of Annual or Special Meeting. Written or
printed notice stating the location, day and hour of the meeting and, in case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be delivered not less than ten nor more than 60 days before the date of
the meeting, either personally or by mail, by or at the direction of the
Chairman of the Board, the President, the Secretary, or the officer or person
calling the meeting, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, addressed to the stockholder at his address as it
appears on the stock transfer books of the corporation, with postage thereon
prepaid.
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Section 5. Business at Special Meeting. The business transacted
at any special meeting of the stockholders shall be limited to the purposes
stated in the notice thereof.
Section 6. Quorum of Stockholders. Unless otherwise provided in
the Certificate of Incorporation or applicable law, the holders of a majority
of the shares entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of the stockholders. If, however, a quorum
shall not be present or represented at any meeting of the stockholders, the
stockholders present in person or represented by proxy shall have power to
adjourn the meeting from time to time, without notice other than announcement
of location, day, and hour of the adjourned 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, unless the adjournment is for
more than 30 days or a new record date is fixed for the adjourned meeting, in
which case notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at such meeting. The stockholders present at a duly
organized meeting may continue to transact business until adjournment, and the
subsequent withdrawal of any stockholder or the refusal of any stockholder to
vote shall not affect the presence of quorum at the meeting.
Section 7. Act of Stockholders' Meeting. Except with respect to
the election of directors, the vote of the holders of a majority of the shares
entitled to vote and represented in person or by proxy at a meeting at which a
quorum is present shall be the act of the stockholders' meeting, unless the
vote of a greater number is required by law or the Certificate of
Incorporation. Unless otherwise provided in the Certificate of Incorporation,
directors shall be elected by a plurality of the votes cast by the holders of
shares entitled to vote in the election of directors at a meeting of
stockholders at which a quorum is present and all elections of directors shall
be by written ballot. Where a separate vote by a class or classes is required,
a majority of the outstanding shares of such class or classes, present in
person or represented by proxy, shall constitute a quorum entitled to take
action with respect to that vote on that matter and the affirmative vote of the
majority of shares of such class or classes present in person or represented by
proxy at the meeting shall be the act of such class.
Section 8. Voting of Shares. Each outstanding share shall be
entitled to one vote on each matter submitted to a vote at a meeting of the
stockholders, except to the extent that the voting rights of the shares of any
class are limited or denied by the Certificate of Incorporation or by a
resolution of the Board of Directors designating a series of preferred stock.
At each election for directors, every stockholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected
and for whose election he has the right to vote. Unless permitted by the
Certificate of Incorporation, no stockholder shall be entitled to cumulate his
votes by giving one candidate as many votes as the number of such
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directors to be elected multiplied by the number of shares owned by such
stockholder or by distributing such votes on the same principle among any
number of such candidates.
Section 9. Proxies. At any meeting of the stockholders, each
stockholder having the right to vote shall be entitled to vote either in person
or by proxy executed in writing by the stockholder or by his duly authorized
attorney-in-fact. No proxy shall be valid after three (3) years from its date
of execution unless otherwise provided in the proxy. Each proxy shall be
revocable unless expressly provided therein to be irrevocable and the proxy is
coupled with an interest or otherwise made irrevocable by law.
Section 10. Voting List. The officer or agent having charge of
the stock ledger of the corporation shall make, at least ten days before each
meeting of the stockholders, a complete list of the stockholders entitled to
vote at such meeting or any adjournment thereof, arranged in alphabetical
order, with the address of and number of shares held by each, which list shall
be maintained, for a period of ten days prior to such 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, and shall be subject to inspection by any
stockholder at any time during ordinary business hours. Such list shall also
be produced and kept open at the time and place of the meeting and shall be
subject to the inspection of any stockholder during the whole time of the
meeting. The original stock ledger shall be the only evidence as to who are
the stockholders entitled to examine such list or transfer books of the
corporation or to vote at any such meeting of stockholders.
Section 11. Action by Written Consent Without a Meeting. Any
action required or permitted by law, the Certificate of Incorporation, or these
Bylaws to be taken at a meeting of the 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, is signed by the holders of stock having not
less than the minimum number of votes that would be necessary to take such
action at a meeting at which the holders of all shares entitled to vote on the
action were present and voting. Consent does not have to be unanimous. Every
written consent must bear the date of signature of each stockholder who signs
the consent. No written consent shall be effective to take the action that is
the subject of the consent unless, within 60 days after the date of the
earliest dated consent delivered to the corporation in the manner required by
this Section 11, a consent or consents signed by the holder or holders of
shares having not less than the minimum number of votes that would be necessary
to take the action that is the subject of the consent are delivered to the
corporation by delivery to its registered office, its principal place of
business, or an officer or agent of the corporation having custody of the books
in which proceedings of meetings of stockholders are recorded. Delivery shall
be by hand or certified or registered mail, return receipt requested. Delivery
to the corporation's principal place of business shall be addressed to the
President or Chief Executive Officer of the Corporation. Prompt notice of the
taking of any action by
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stockholders without a meeting by less than unanimous written consent shall be
given to those stockholders who did not consent in writing to the action.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. 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 all 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 and done by the stockholders.
Section 2. Number of Directors. The number of directors shall
consist of one or more members as determined from time to time in accordance
with these Bylaws by resolution of the Board of Directors, but no decrease in
the number of directors shall have the effect of shortening the term of any
incumbent director.
Section 3. Election and Term. The directors, other than the
initial directors, shall be elected at the annual meeting of the stockholders
except as provided in Section 4 of this Article, and each director of the
corporation shall hold office until his successor is elected and qualified or
until his death, resignation or removal. Unless required by the Certificate of
Incorporation, directors need not be residents of the State of Delaware or
stockholders of the corporation.
Section 4. Vacancies. Any vacancy occurring in the Board of
Directors shall be filled by the affirmative vote of a majority of the
remaining directors though less than a quorum of the Board of Directors, or by
a sole remaining director, or if no directors remain, by an election at an
annual or special meeting of the stockholders called for that purpose. A
director elected to fill a vacancy shall be elected for the unexpired term of
his predecessor in office. Any directorship to be filled by reason of an
increase in the number of directors may be filled by the affirmative vote of a
majority of the directors. A director elected to fill a newly created
directorship shall hold office until his successor is elected and qualified or
until his death, resignation or removal.
Notwithstanding the preceding provisions of this Section 4, whenever
the holders of any class or series of shares are entitled to elect one or more
directors by the provisions of the Certificate of Incorporation, any vacancies
in such directorships and any newly created directorships of such class or
series to be filled by reason of an increase in the number of such directors
may be filled by the affirmative vote of a majority of the directors elected by
such class or series then in office or by a sole remaining director so elected.
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Unless otherwise provided in the Certificate of Incorporation or these
Bylaws, when one or more directors shall resign from the Board of Directors
effective at a future date, a majority of the directors then in office,
including those who so resigned, shall have power to fill such vacancy or
vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective, and each director so chosen shall hold
office as provided in this Section 4 in the filling of other vacancies.
Section 5. Resignation and Removal. Any director may resign at
any time upon giving written notice to the corporation. At any meeting of
stockholders called expressly for the purpose of removing a director or
directors, any director or the entire Board of Directors may be removed, with
or without cause, by a vote of the holders of a majority of the shares then
entitled to vote at an election of directors.
Section 6. Compensation of Directors. As specifically
prescribed from time to time by resolution of the Board of Directors, the
directors of the corporation may be paid their expenses of attendance at each
meeting of the Board and may be paid a fixed sum for attendance at each meeting
of the Board or a stated salary in their capacity as directors. This provision
shall not 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 7. Chairman of the Board. The Board of Directors, at
its first meeting after each annual meeting of stockholders, may elect one of
its members Chairman of the Board. The Chairman of the Board shall preside at
all meetings of the Board of Directors and shall have such other powers and
duties as usually pertain to such position or as may be delegated by the Board
of Directors.
ARTICLE IV
MEETINGS OF THE BOARD
Section 1. First Meeting. The first meeting of each newly
elected Board of Directors shall be held immediately following the annual
meeting of the stockholders and no notice of such meeting shall be necessary to
the newly elected directors in order legally to constitute the meeting,
provided a quorum shall be present.
Section 2. Regular Meetings. Regular meetings of the Board of
Directors may be held with or without notice at such time and at such place
either within or without the State of Delaware as from time to time shall be
prescribed by the Board of Directors.
Section 3. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the President or by a
majority of the Board of
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Directors. Written notice of special meetings of the Board of Directors shall
be given to each director at least 24 hours before the time of the meeting.
Section 4. Business at Regular or Special Meeting. Neither the
business to be transacted at nor the purpose of any regular or special meeting
of the Board of Directors need be specified in the notice or waiver of notice
of such meeting.
Section 5. Quorum of Directors. A majority of the Board of
Directors shall constitute a quorum for the transaction of business, unless a
greater number is required by law or the Certificate of Incorporation. If a
quorum shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present.
Section 6. Act of Directors' Meeting. The act of a majority of
the directors present 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 law or the Certificate of Incorporation.
Section 7. Action by Unanimous Written Consent Without a
Meeting. Any action required or permitted to be taken at a meeting of the
Board of Directors or any executive committee under the provisions of any
applicable law, the Certificate of Incorporation or these Bylaws may be taken
without a meeting if a consent in writing setting forth the action so taken is
signed by all members of the Board of Directors or of the executive committee,
as the case may be, and such consent is filed with the minutes of proceedings
of the Board of Directors or the executive committee, as the case may be. Such
consent shall have the same force and effect as a unanimous vote of the Board
of Directors or of the executive committee, as the case may be.
Section 8. Interested Directors. No contract or transaction
between the corporation and one or more of its directors or officers or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof that
authorizes the contract or transaction, or solely because his or their votes
are counted for such purpose, if:
(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 of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative vote of a majority of the disinterested directors, even
though the disinterested directors be less than a quorum; or
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(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 that authorizes
the contract or transaction.
ARTICLE V
COMMITTEES
The Board of Directors, by resolution adopted by a majority of the
full Board of Directors, may designate from among its members an executive
committee and one or more other committees, each of which, to the extent
provided in such resolution or in the Certificate of Incorporation or in these
Bylaws, shall have and may exercise all the authority of the Board of
Directors, subject to the limitations imposed by applicable law. The Board of
Directors, by resolution adopted by a majority of the full Board of Directors,
may designate one or more of its members as alternate members of any committee,
who may, subject to any limitations imposed by the Board of Directors, replace
absent or disqualified members at any meeting of that committee. Vacancies in
the membership of any such committee shall be filled by resolution adopted by
the majority of the full Board of Directors at a regular or special meeting of
the Board. The designation of any such committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors, or any member
thereof, of any responsibility imposed upon it or him by law. All committees
shall keep regular minutes of their proceedings and report the same to the
Board of Directors when required. To the extent applicable, the provisions of
Article IV of these Bylaws governing the meetings of the Board of Directors
shall likewise govern the meetings of any committee thereof. Any member of the
executive committee or any other committee may be removed by the Board of
Directors by the affirmative vote of a majority of the full Board, whenever, in
its judgment, the best interests of the corporation will be served thereby.
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ARTICLE VI
NOTICES
Section 1. Methods of Giving Notice. Whenever any notice is
required to be given to any stockholder or director under the provisions of any
law, the Certificate of Incorporation or these Bylaws, it shall be given in
writing and delivered personally or mailed to such stockholder or director at
such address as appears on the books of the corporation, and such notice shall
be deemed to be given at the time the same shall be deposited in the United
States mail with sufficient postage thereon prepaid. Notice to directors may
also be given by telegram, telex, telecopy, or similar means of visual data
transmission, and notice given by any of such means shall be deemed to be
delivered when transmitted for delivery to the recipient.
Section 2. Waiver of Notice. Whenever any notice is required to
be given to any stockholder or director under the provisions of any law, the
Certificate of Incorporation, or these Bylaws, a waiver thereof in writing
signed by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of such
notice.
Section 3. Attendance as Waiver. Attendance of a stockholder or
director at a meeting shall constitute a waiver of notice of such meeting,
except where a stockholder or director attends a meeting 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.
Neither the business to be transacted at, nor the purpose of, a meeting need be
specified in any written waiver unless required by the Certificate of
Incorporation or these Bylaws.
ARTICLE VII
DIRECTORS' ACTION WITHOUT A MEETING BY USE
OF CONFERENCE TELEPHONE
Subject to the provisions required or permitted for notice of
meetings, unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, members of the Board of Directors or members of any committee
designated by such Board of Directors may participate in and hold a meeting of
such Board of Directors or committee by conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in such a meeting shall
constitute presence in person at such meeting, except where a person
participates in the meeting 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.
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ARTICLE VIII
OFFICERS
Section 1. Executive Officers. The officers of the corporation
shall consist of a President and a Secretary and may also include one or more
Vice Presidents, a Treasurer, and such other officers as are provided for in
this Article VIII, each of whom shall be elected by the Board of Directors as
provided in Section 2 of this Article. Any two (2) or more offices may be held
by the same person.
Section 2. Election and Qualification. The Board of Directors,
at its first meeting held immediately after each annual meeting of
stockholders, shall choose a President and a Secretary. The Board of Directors
also may elect one or more Vice Presidents, a Treasurer, and such other
officers, including assistant officers and agents as may be deemed necessary,
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the Board of
Directors.
Section 3. Salaries. The compensation of all officers and
agents of the corporation shall be determined by the Board of Directors.
Section 4. Term, Removal, and Vacancies. Each officer of the
corporation shall hold office until his successor is chosen and qualified or
until his death, resignation, or removal. Any officer may resign at any time
upon giving written notice to the corporation. Any officer or agent or member
of the executive committee elected or appointed by the Board of Directors may
be removed by the Board of Directors with or without cause, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed. Election or appointment of an officer or agent shall not of itself
create contract rights. Any vacancy occurring in any office of the corporation
by death, resignation, removal, or otherwise shall be filled by the Board of
Directors.
Section 5. Chief Executive Officer. Unless the Board of
Directors designates otherwise, the President shall be the Chief Executive
Officer of the corporation. The Chief Executive Officer shall preside at all
meetings of the stockholders. The Chief Executive Officer shall have such
other powers and duties as usually pertain to such office or as may be
delegated by the Board of Directors.
Section 6. President. The President shall be ex-officio a
member of all standing committees and shall have general powers of oversight,
supervision, and management of the business and affairs of the corporation, and
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The President shall have such other powers and duties as usually
pertain to such office or as may be prescribed by the Board of Directors. He
shall execute bonds, mortgages, instruments, contracts, agreements, and other
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documentation, except where the signing and execution thereof shall be
expressly delegated by the Board of Directors to some other officer or agent of
the corporation.
Section 7. Vice Presidents. Unless otherwise determined by the
Board of Directors, the Vice Presidents, in the order of their seniority as
such seniority may from time to time be designated by the Board of Directors,
shall perform the duties and exercise the powers of the President in the
absence or disability of the President. They shall perform such other duties
and have such other powers as the Board of Directors may from time to time
prescribe.
Section 8. Secretary. The Secretary shall attend all meetings
of the Board of Directors and all meetings of the stockholders, shall record
all the proceedings of the meetings of the stockholders and of the Board of
Directors in books to be kept for that purpose, and shall perform like duties
for the standing committees when required. He 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. He shall keep in safe custody the seal of the
corporation, and, when authorized by the Board of Directors, affix the same to
any instrument requiring it. When so affixed, such seal shall be attested by
his signature or by the signature of the Treasurer or an Assistant Secretary.
Section 9. Assistant Secretaries. Unless otherwise determined
by the Board of Directors, the Assistant Secretaries, in the order of their
seniority as such seniority may from time to time be designated by the Board of
Directors, shall perform the duties and exercise the powers of the Secretary in
the absence or disability of the Secretary. They shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
Section 10. Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements, and
shall perform such other duties and have such other powers as the Board of
Directors may from time to time prescribe.
Section 11. Assistant Treasurer. Unless otherwise determined by
the Board of Directors, the Assistant Treasurer shall perform the duties and
exercise the powers of the Treasurer in the absence or disability of the
Treasurer. He shall perform such other duties and have such other powers as
the Board of Directors may from time to time prescribe.
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Section 12. Officers' Bond. If required by the Board of
Directors, any officer so required shall give the corporation a bond, which
shall be renewed as the Board of Directors may require, in such sum and with
such surety or sureties as shall be satisfactory to the Board of Directors for
the faithful performance of the duties of his office and for the restoration to
the corporation, in case of his death, resignation, retirement or removal from
office, of any and all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
corporation.
ARTICLE IX
CERTIFICATES FOR SHARES
Section 1. Certificates Representing Shares. The corporation
shall deliver certificates representing all shares to which stockholders are
entitled. Such certificates shall be numbered and shall be entered in the
books of the corporation as they are issued, and shall be signed by the
Chairman of the Board of Directors, the President or a Vice President, and by
the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the corporation, and may be sealed with the seal of the
corporation or a facsimile thereof. Any or all signatures on the certificate
may be a facsimile. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the corporation
with the same effect as if he were such officer at the date of its issuance.
If the corporation is authorized to issue shares of more than one class, there
shall be set forth upon the face or back of the certificate a statement that
the corporation will furnish to any stockholder upon request and without charge
a full statement of all of the powers, designations, preferences, limitations
and relative, participating, optional, or other special rights of the shares of
each class authorized to be issued and the qualifications, limitations or
restrictions of such preferences and/or rights and, if the corporation is
authorized to issue any preferred or special class in series, the variations in
the relative rights and preferences between the shares of each such series so
far as the same have been fixed and determined and the authority of the Board
of Directors to fix and determine the relative rights and preferences of
subsequent series. Each certificate representing shares shall state upon the
face thereof that the corporation is organized under the laws of the State of
Delaware, the name of the person to whom issued, the number and the class and
the designation of the series, if any, which such certificate represents and
the par value of each share represented by such certificate or a statement that
the shares are without par value. No certificate shall be issued for any share
until the consideration therefor has been fully paid.
Section 2. Restriction on Transfer of Shares. If any
restriction on the transfer, or registration of the transfer, of shares shall
be imposed or agreed to by the corporation, as permitted by law, the
Certificate of Incorporation, or these Bylaws, such restriction shall be
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noted conspicuously on each certificate representing shares in accordance with
applicable law.
Section 3. Voting Agreements. A written counterpart of any
voting agreement entered into among any number of stockholders of the
corporation, or any number of stockholders of the corporation and the
corporation itself, for the purpose of providing that shares of the corporation
shall be voted in the manner prescribed in the agreement shall be deposited
with the corporation at its registered office in Delaware and shall be subject
to the inspection by any stockholder of the corporation or any beneficiary of
the agreement daily during business hours. In addition, certificates of stock
or uncertificated stock shall be issued to the person or persons or corporation
or corporations authorized to act as trustee for purposes of vesting in such
person or persons, corporation or corporations the right to vote such shares,
to represent any stock of an original issue so deposited with him or them, and
any certificates of stock or uncertificated stock so transferred to the voting
trustee or trustees shall be surrendered and canceled and new certificates or
uncertificated stock shall be issued therefore to the voting trustee or
trustees. In the certificate so issued, if any, it shall be stated that it is
issued pursuant to such agreement, and that fact shall also be stated in the
stock ledger of the corporation.
Section 4. Transfer of Shares. Subject to the provisions of
Section 7 of this Article IX, upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment, or authority to
transfer, it shall be the duty of the corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate, and record the
transaction upon its books.
Section 5. Lost, Stolen, or Destroyed Certificate. 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 to be lost, stolen or destroyed.
When authorizing such issue of a new certificate or certificates, the Board of
Directors, in its discretion and as a condition precedent to the issuance
thereof, may 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 to indemnify the corporation 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 6. Closing of Transfer Books and Fixing 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 in order to make a
determination of stockholders for any other proper purpose (other than
determining stockholders entitled to consent to action taken by
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stockholders that is proposed to be taken without a meeting of stockholders),
the Board of Directors may fix a date as the record date for any such
determination of stockholders, such date to not precede the date of adoption of
the resolution fixing the record date, and such date to be not more than 60
days, and, in case of a meeting of stockholders, not less than ten days, prior
to the date on which the particular action requiring such determination of
stockholders is to be taken. If no record date is fixed for the determination
of stockholders entitled to notice of or to vote at a meeting of stockholders,
or stockholders entitled to receive payment of a dividend or other
distribution, or for any other proper purpose, the close of business on the day
next preceding the date on which notice of the meeting is mailed or if notice
is waived, the close of business on the day next preceding the day on which the
meeting is held or the date on which the resolution of the Board of Directors
declaring such dividend or relating to such other proper purpose is adopted, as
the case may be, shall be the record date for such determination of
stockholders. When a determination of stockholders entitled to vote at any
meeting of stockholders has been made as provided in this Section 6, such
determination shall apply to any adjournment thereof; provided that the Board
of Directors may fix a new record date for the adjourned meeting. Whenever
action by stockholders is proposed to be taken by consent in writing without a
meeting of stockholders, the Board of Directors may fix a record date for the
purpose of determining stockholders entitled to consent to that action, which
record date shall not precede, and shall not be more than ten days after, the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. If no record date has been fixed by the Board of Directors and
the prior action of the Board of Directors is not required by law, the record
date for determining stockholders entitled to consent to action in writing
without a meeting shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office, its principal place of
business, or an officer or agent of the corporation having custody of the book
in which proceedings of meetings of stockholders are recorded. Delivery to the
corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. If no record date shall have been fixed by the
Board of Directors and prior action of the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to action
in writing without a meeting shall be at the close of business on the date on
which the Board of Directors adopts a resolution taking such prior action.
Section 7. Registered Stockholders. The corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any other person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws
of the State of Delaware.
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ARTICLE X
GENERAL PROVISIONS
Section 1. Dividends. The Board of Directors from time to time
may declare, and the corporation may pay, dividends on its outstanding shares
in cash, property, or its own shares pursuant to law and subject to the
provisions of the Certificate of Incorporation and these Bylaws.
Section 2. Reserves. The Board of Directors may by resolution
create a reserve or reserves out of earned surplus for any proper purpose or
purposes, and may abolish any such reserve in the same manner.
Section 3. Negotiable Instruments. All bills, notes, checks, or
instruments for the payment of money shall be signed by such officer or
officers or such other person or persons as permitted by these Bylaws or in
such manner as the Board of Directors from time to time may designate.
Section 4. Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the Board of Directors.
Section 5. Seal. The corporate seal shall have inscribed
thereon the name of the corporation and may be used by causing it or a
facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 6. Books and Records. The corporation shall keep books
and records of account and shall keep minutes of the proceedings of the
stockholders, the Board of Directors, and each committee of the Board of
Directors. The corporation shall keep at its registered office or principal
place of business, or at the office of its transfer agent or registrar, a
record of the original issuance of shares issued by the corporation and a
record of each transfer of those shares that have been presented to the
corporation for registration of transfer. Such records shall contain the names
and addresses of all past and current stockholders of the corporation and the
number and class of shares issued by the corporation held by each of them. Any
books, records, minutes, and share transfer records may be in written form or
in any other form capable of being converted into written form within a
reasonable time.
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ARTICLE XI
INDEMNIFICATION
Section 1. Mandatory Indemnification. To the fullest extent
permitted by the General Corporation Law of Delaware, as the same may be
amended from time to time, the corporation shall indemnify any and all of its
directors and officers, or former directors and officers, or any person who is
serving or has served at the corporation's request as a director or officer of
another corporation, partnership, joint venture, trust, or other enterprise.
Section 2. Mandatory Advancement of Expenses. To the fullest
extent permitted by the General Corporation Law of Delaware, as the same may be
amended from time to time, the corporation shall pay in advance all expenses
(including attorneys' fees) incurred by any director or officer, or former
director or officer, or any person who is serving or has served at the
corporation's request as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise, in defending any civil,
criminal, administrative or investigative action, suit or proceeding. Such
person shall repay such amount to the corporation if it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized by this Article XI.
ARTICLE XII
AMENDMENTS
These Bylaws may be altered, amended, or repealed or new Bylaws may be
adopted by the Board of Directors at any regular or special meeting of the
Board, subject to the stockholders' right to adopt, amend, or repeal these
Bylaws or adopt new Bylaws.
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CERTIFICATE OF SECRETARY
The undersigned hereby certifies that (i) she is the duly elected and
qualified Secretary of WHC Vinings Corporation, a Delaware corporation (the
"Company"), and (ii) the foregoing is a true and correct copy of the Bylaws of
the Company reviewed and adopted by the Board of Directors of the Company by
unanimous written consent dated as of May 14, 1996
/s/ Elise M. Turner
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Elise M. Turner
May 16, 1996
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Date
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