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EXHIBIT 3.2
FCI HOLDING CORP.
BY-LAWS
TABLE OF CONTENTS
Title Page
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Article I - General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1. Offices . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Seal . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.3. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . 1
Article II - Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.1. Place of Meetings . . . . . . . . . . . . . . . . . . . 1
Section 2.2. Annual Meeting . . . . . . . . . . . . . . . . . . . . 1
Section 2.3. Quorum . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2.4. Right to Vote; Proxies . . . . . . . . . . . . . . . . 2
Section 2.5. Voting . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2.6. Notice of Annual Meetings . . . . . . . . . . . . . . . 2
Section 2.7. Stockholders' List . . . . . . . . . . . . . . . . . . 2
Section 2.8. Special Meetings . . . . . . . . . . . . . . . . . . . 3
Section 2.9. Notice of Special Meetings . . . . . . . . . . . . . . 3
Section 2.10. Inspectors . . . . . . . . . . . . . . . . . . . . . . 3
Section 2.11. Stockholders' Consent in Lieu of Meeting . . . . . . . 3
Article III - Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.1. Number of Directors . . . . . . . . . . . . . . . . . . 4
Section 3.2. Change in Number of Directors; Vacancies . . . . . . . 4
Section 3.3. Resignation . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.4. Removal . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 3.5. Place of Meetings and Books . . . . . . . . . . . . . . 4
Section 3.6. General Powers . . . . . . . . . . . . . . . . . . . . 5
Section 3.7. Executive Committee . . . . . . . . . . . . . . . . . . 5
Section 3.8. Other Committees . . . . . . . . . . . . . . . . . . . 5
Section 3.9. Powers Denied to Committees . . . . . . . . . . . . . . 5
Section 3.10. Substitute Committee Member . . . . . . . . . . . . . . 5
Section 3.11. Compensation of Directors . . . . . . . . . . . . . . . 6
Section 3.12. Annual Meeting . . . . . . . . . . . . . . . . . . . . 6
Section 3.13. Regular Meetings . . . . . . . . . . . . . . . . . . . 6
Section 3.14. Special Meetings . . . . . . . . . . . . . . . . . . . 6
Section 3.15. Quorum . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.16. Telephonic Participation in Meetings . . . . . . . . . 6
Section 3.17. Action by Consent . . . . . . . . . . . . . . . . . . . 6
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Article IV - Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.1. Selection; Statutory Officers . . . . . . . . . . . . . 7
Section 4.2. Time of Election . . . . . . . . . . . . . . . . . . . 7
Section 4.3. Additional Officers . . . . . . . . . . . . . . . . . . 7
Section 4.4. Terms of Office . . . . . . . . . . . . . . . . . . . . 7
Section 4.5. Compensation of Officers . . . . . . . . . . . . . . . 7
Section 4.6. Chairman of the Board . . . . . . . . . . . . . . . . . 7
Section 4.7. President . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.8. Vice-Presidents . . . . . . . . . . . . . . . . . . . . 8
Section 4.9. Treasurer . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.10. Secretary . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.11. Assistant Secretary . . . . . . . . . . . . . . . . . . 8
Section 4.12. Assistant Treasurer . . . . . . . . . . . . . . . . . . 8
Section 4.13. Subordinate Officers . . . . . . . . . . . . . . . . . 9
Article V - Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.1. Stock . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5.2. Fractional Share Interests . . . . . . . . . . . . . . 9
Section 5.3. Transfers of Stock . . . . . . . . . . . . . . . . . . 9
Section 5.4. Record Date . . . . . . . . . . . . . . . . . . . . . . 10
Section 5.5. Transfer Agent and Registrar . . . . . . . . . . . . . 10
Section 5.6. Dividends . . . . . . . . . . . . . . . . . . . . . . . 10
1. Power to Declare . . . . . . . . . . . . . . . . 10
2. Reserves . . . . . . . . . . . . . . . . . . . . 10
Section 5.7. Lost, Stolen or Destroyed Certificates . . . . . . . . 11
Section 5.8. Inspection of Books . . . . . . . . . . . . . . . . . . 11
Article VI - Miscellaneous Management Provisions . . . . . . . . . . . . . . 11
Section 6.1. Checks, Drafts and Notes . . . . . . . . . . . . . . . 11
Section 6.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 6.3. Conflict of Interest . . . . . . . . . . . . . . . . . 11
Section 6.4. Voting of Securities owned by this Corporation . . . . 12
Article VII - Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.1. Right to Indemnification . . . . . . . . . . . . . . . 12
Section 7.2. Right of Indemnitee to Bring Suit. . . . . . . . . . 13
Section 7.3. Non-Exclusivity of Rights . . . . . . . . . . . . . . . 14
Section 7.4. Insurance . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.5. Indemnification of Employees and Agents of the
Corporation . . . . . . . . . . . . . . . . . . . . . . 14
Article VIII - Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 8.1. Amendments . . . . . . . . . . . . . . . . . . . . . . 14
Article IX - Special Provisions . . . . . . . . . . . . . . . . . . . . . . . 14
Section 9.1. Special Provisions . . . . . . . . . . . . . . . . . . 14
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FCI HOLDING CORP.
BY-LAWS
ARTICLE I - GENERAL
Section 1.1. Offices. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware. The Corporation may also
have offices at such other places both within and without the State of Delaware
as the Board of Directors may from time to time determine or the business of
the Corporation may require.
Section 1.2. Seal. The seal of the Corporation shall be in the form of
a circle and shall have inscribed thereon the name of the Corporation, the year
of its organization and the words "Corporate Seal, Delaware".
Section 1.3. Fiscal Year. The fiscal year of the Corporation shall be
the period from January 1 through December 31.
ARTICLE II - STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of the stockholders shall
be held at the office of the Corporation in the State of Texas except such
meetings as the Board of Directors expressly determine shall be held elsewhere,
in which case meetings may be held upon notice as hereinafter provided at such
other place or places within or without the State of Texas as the Board of
Directors shall have determined and as shall be stated in such notice.
Section 2.2. Annual Meeting. The annual meeting of the stockholders
shall be held on such date and at such time as the Board of Directors may
determine. At each annual meeting the stockholders entitled to vote shall
elect a Board of Directors by plurality vote by ballot, and they may transact
such other corporate business as may properly be brought before the meeting.
At the annual meeting any business may be transacted, irrespective of whether
the notice calling such meeting shall have contained a reference thereto,
except where notice is required by law, the Certificate of Incorporation, or
these by-laws.
Section 2.3. Quorum. At all meetings of the stockholders the holders
of a majority of the stock issued and outstanding and entitled to vote thereat,
present in person or represented by proxy, shall constitute a quorum requisite
for the transaction of business except as otherwise provided by law, by the
Certificate of Incorporation or by these by-laws. If, however, such majority
shall not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or by proxy, by a
majority vote, shall have power to adjourn the meeting from time to time
without notice other than announcement at the meeting until the requisite
amount of voting stock shall be present. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for
the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. At such adjourned
meeting, at which the requisite amount of voting stock shall be represented,
any business may be transacted which might have been transacted if the meeting
had been held as originally called.
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Section 2.4. Right to Vote; Proxies. Each holder of a share or shares
of capital stock of the Corporation having the right to vote at any meeting
shall be entitled to one vote for each such share of stock held by him. Any
stockholder entitled to vote at any meeting of stockholders may vote either in
person or by proxy, but no proxy which is dated more than three years prior to
the meeting at which it is offered shall confer the right to vote thereat
unless the proxy provides that it shall be effective for a longer period. A
proxy may be granted by a writing executed by the stockholder or his authorized
officer, director, employee or agent or by transmission or authorization of
transmission of a telegram, cablegram, or other means of electronic
transmission to the person who will be the holder of the proxy or to a proxy
solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such
transmission, subject to the conditions set forth in Section 212 of the
Delaware General Corporation Law, as it may be amended from time to time (the
"Delaware GCL").
Section 2.5. Voting. At all meetings of stockholders, except as
otherwise expressly provided for by statute, the Certificate of Incorporation
or these by-laws, (a) in all matters other than the election of directors, the
affirmative vote of a majority of shares present in person or represented by
proxy at the meeting and entitled to vote on such matter shall be the act of
the stockholders and (b) directors shall be elected by a plurality of the votes
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the election of directors. Except as otherwise expressly
provided by law, the Certificate of Incorporation or these by-laws, at all
meetings of stockholders the voting shall be by voice vote, but any stockholder
qualified to vote on the matter in question may demand a stock vote, by shares
of stock, upon such question, whereupon such stock vote shall be taken by
ballot, each of which shall state the name of the stockholder voting and the
number of shares voted by him, and, if such ballot be cast by a proxy, it shall
also state the name of the proxy.
Section 2.6. Notice of Annual Meetings. Written notice of the annual
meeting of the stockholders shall be mailed to each stockholder entitled to
vote thereat at such address as appears on the stock books of the Corporation
at least ten (10) days (and not more than sixty (60) days) prior to the
meeting. It shall be the duty of every stockholder to furnish to the Secretary
of the Corporation or to the transfer agent, if any, of the class of stock
owned by him, his post-office address and to notify said Secretary or transfer
agent of any change therein.
Section 2.7. Stockholders' List. A complete list of the stockholders
entitled to vote at any meeting of stockholders, arranged in alphabetical order
and showing the address of each stockholder, and the number of shares
registered in the name of each stockholder, shall be prepared by the Secretary
and filed 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, at least ten days
before such meeting, and shall at all times during the usual hours for
business, and during the whole time of said election, be open to the
examination of any stockholder for a purpose germane to the meeting.
Section 2.8. Special Meetings. Special meetings of the stockholders
for any purpose or purposes, unless otherwise provided by statute, may be
called by the Board of Directors, the Chairman of the Board, if any, the
President or any Vice President.
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Section 2.9. Notice of Special Meetings. Written notice of a special
meeting of stockholders, stating the time and place and object thereof shall be
mailed, postage prepaid, not less than ten (10) nor more than sixty (60) days
before such meeting, to each stockholder entitled to vote thereat, at such
address as appears on the books of the Corporation. No business may be
transacted at such meeting except that referred to in said notice, or in a
supplemental notice given also in compliance with the provisions hereof, or
such other business as may be germane or supplementary to that stated in said
notice or notices.
Section 2.10. Inspectors.
1. One or more inspectors may be appointed by the Board of Directors
before or at any meeting of stockholders, or, if no such appointment shall have
been made, the presiding officer may make such appointment at the meeting. At
the meeting for which the inspector or inspectors are appointed, he or they
shall open and close the polls, receive and take charge of the proxies and
ballots, and decide all questions touching on the qualifications of voters, the
validity of proxies and the acceptance and rejection of votes. If any
inspector previously appointed shall fail to attend or refuse or be unable to
serve, the presiding officer shall appoint an inspector in his place.
2. At any time at which the Corporation has a class of voting stock
that is (a) listed on a national securities exchange, (b) authorized for
quotation on an inter-dealer quotation system of a registered national
securities association, or (c) held of record by more than 2,000 stockholders,
the provisions of Section 231 of the Delaware GCL with respect to inspectors of
election and voting procedures shall apply, in lieu of the provisions of
paragraph (1) of this Section 2.10.
Section 2.11. Stockholders' Consent in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation, any action required by
law to be taken at any annual or special meeting of stockholders of the
Corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action
so taken, shall be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted and shall be delivered to the Corporation by delivery to its
registered office in the State of Delaware, 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 made to the
Corporation's registered office shall be by hand or by certified or registered
mail, return receipt requested. Every written consent shall bear the date of
signature of each stockholder who signs the consent and no written consent
shall be effective to take the corporate action referred to therein unless,
within sixty days of the earliest dated consent delivered in the manner
required by this Section 2.11 to the Corporation, written consents signed by a
sufficient number of stockholders to take action are delivered to the
Corporation by delivery to its registered office in the State of Delaware, 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 made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. Prompt
notice of the taking of the corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
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ARTICLE III - DIRECTORS
Section 3.1. Number of Directors. Except as otherwise provided by law,
the Certificate of Incorporation or these by-laws, the property and business of
the Corporation shall be managed by or under the direction of a board of not
less than one nor more than thirteen directors. Within the limits specified,
the number of directors shall be determined by resolution of the Board of
Directors or by the stockholders at the annual meeting. Directors need not be
stockholders, residents of Delaware or citizens of the United States. The
directors shall be elected by ballot at the annual meeting of the stockholders
and each director shall be elected to serve until his successor shall be
elected and shall qualify or until his earlier resignation or removal; provided
that in the event of failure to hold such meeting or to hold such election at
such meeting, such election may be held at any special meeting of the
stockholders called for that purpose. If the office of any director becomes
vacant by reason of death, resignation, disqualification, removal, failure to
elect, or otherwise, the remaining directors, although more or less than a
quorum, by a majority vote of such remaining directors may elect a successor or
successors who shall hold office for the unexpired term.
Section 3.2. Change in Number of Directors; Vacancies. The maximum
number of directors may be increased by an amendment to these by-laws adopted
by a majority vote of the Board of Directors or by a majority vote of the
capital stock having voting power, and if the number of directors is so
increased by action of the Board of Directors or of the stockholders or
otherwise, then the additional directors may be elected in the manner provided
above for the filling of vacancies in the Board of Directors or at the annual
meeting of stockholders or at a special meeting called for that purpose.
Section 3.3. Resignation. Any director of this Corporation may resign
at any time by giving written notice to the Chairman of the Board, if any, the
President or the Secretary of the Corporation. Such resignation shall take
effect at the time specified therein, at the time of receipt if no time is
specified therein and at the time of acceptance if the effectiveness of such
resignation is conditioned upon its acceptance. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 3.4. Removal. Any director or the entire Board of Directors
may be removed, with or without cause, by the holders of a majority of the
shares then entitled to vote at an election of directors.
Section 3.5. Place of Meetings and Books. The Board of Directors may
hold their meetings and keep the books of the Corporation outside the State of
Delaware, at such places as they may from time to time determine.
Section 3.6. General Powers. In addition to the powers and authority
expressly conferred upon them by these by-laws, the board may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these by-laws directed or
required to be exercised or done by the stockholders.
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Section 3.7. Executive Committee. There may be an executive committee
of one or more directors designated by resolution passed by a majority of the
whole board. The act of a majority of the members of such committee shall be
the act of the committee. Said committee may meet at stated times or on notice
to all by any of their own number, and shall have and may exercise those powers
of the Board of Directors in the management of the business affairs of the
Company as are provided by law and may authorize the seal of the Corporation to
be affixed to all papers which may require it. Vacancies in the membership of
the committee shall be filled by the Board of Directors at a regular meeting or
at a special meeting called for that purpose.
Section 3.8. Other Committees. The Board of Directors may also
designate one or more committees in addition to the executive committee, by
resolution or resolutions passed by a majority of the whole board; such
committee or committees shall consist of one or more directors of the
Corporation, and to the extent provided in the resolution or resolutions
designating them, shall have and may exercise specific powers of the Board of
Directors in the management of the business and affairs of the Corporation to
the extent permitted by statute and shall have power to authorize the seal of
the Corporation to be affixed to all papers which may require it. Such
committee or committees shall have such name or names as may be determined from
time to time by resolution adopted by the Board of Directors.
Section 3.9. Powers Denied to Committees. Committees of the Board of
Directors shall not, in any event, have any power or authority to amend the
Certificate of Incorporation (except that a committee may, to the extent
authorized in the resolution or resolutions providing for the issuance of
shares adopted by the Board of Directors as provided in Section 151(a) of the
Delaware GCL, fix the designations and any of the preferences or rights of such
shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation or the conversion into, or the exchange of such
shares for, shares of any other class or classes 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), adopt an agreement of merger or consolidation,
recommend to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommend to the
stockholders a dissolution of the Corporation or a revocation of a dissolution
or to amend the by-laws of the Corporation. Further, no committee of the Board
of Directors shall have the power or authority to declare a dividend, to
authorize the issuance of stock or to adopt a certificate of ownership and
merger pursuant to Section 253 of the Delaware GCL, unless the resolution or
resolutions designating such committee expressly so provides.
Section 3.10. Substitute Committee Member. In the absence or on the
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of such absent or disqualified
member. Any committee shall keep regular minutes of its proceedings and report
the same to the board as may be required by the board.
Section 3.11. Compensation of Directors. The Board of Directors shall
have the power to fix the compensation of directors and members of committees
of the Board. The directors may be
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paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the
Board of Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may
be allowed like compensation for attending committee meetings.
Section 3.12. Annual Meeting. The newly elected board may meet at such
place and time as shall be fixed and announced by the presiding officer at the
annual meeting of stockholders, for the purpose of organization or otherwise,
and no further 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, or they may meet at such place and time as shall be stated in a
notice given to such directors two (2) days prior to such meeting, or as shall
be fixed by the consent in writing of all the directors.
Section 3.13. Regular Meetings. Regular meetings of the board may be
held without notice at such time and place as shall from time to time be
determined by the board.
Section 3.14. Special Meetings. Special meetings of the board may be
called by the Chairman of the Board, if any, or the President, on two (2) days'
notice to each director, or such shorter period of time before the meeting as
will nonetheless be sufficient for the convenient assembly of the directors so
notified; special meetings shall be called by the Secretary in like manner and
on like notice, on the written request of two or more directors.
Section 3.15. Quorum. At all meetings of the Board of Directors, a
majority of the total number of directors shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors, except as may be otherwise specifically
permitted or provided by statute, or by the Certificate of Incorporation, or by
these by-laws. If at any meeting of the board there shall be less than a
quorum present, a majority of those present may adjourn the meeting from time
to time until a quorum is obtained, and no further notice thereof need be given
other than by announcement at said meeting which shall be so adjourned.
Section 3.16. Telephonic Participation in Meetings. Members of the
Board of Directors or any committee designated by such board may participate in
a meeting of the board or committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting.
Section 3.17. Action by Consent. Unless otherwise restricted by the
Certificate of Incorporation or these by-laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if written consent thereto is signed by
all members of the board or of such committee as the case may be and such
written consent is filed with the minutes of proceedings of the board or
committee.
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ARTICLE IV - OFFICERS
Section 4.1. Selection; Statutory Officers. The officers of the
Corporation shall be chosen by the Board of Directors. There shall be a
President, a Secretary and a Treasurer, and there may be a Chairman of the
Board of Directors, one or more Vice Presidents, one or more Assistant
Secretaries, and one or more Assistant Treasurers, as the Board of Directors
may elect. Any number of offices may be held by the same person, except that
the offices of President and Secretary shall not be held by the same person
simultaneously.
Section 4.2. Time of Election. The officers above named shall be
chosen by the Board of Directors at its first meeting after each annual meeting
of stockholders. None of said officers need be a director.
Section 4.3. Additional Officers. The board may appoint such other
officers and agents as it shall deem necessary, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined from time to time by the board.
Section 4.4. Terms of Office. Each officer of the Corporation shall
hold office until his successor is chosen and qualified, or until his earlier
resignation or removal. Any officer elected or appointed by the Board of
Directors may be removed at any time by the Board of Directors.
Section 4.5. Compensation of Officers. The Board of Directors shall
have power to fix the compensation of all officers of the Corporation. It may
authorize any officer, upon whom the power of appointing subordinate officers
may have been conferred, to fix the compensation of such subordinate officers.
Section 4.6. Chairman of the Board. The Chairman of the Board of
Directors shall preside at all meetings of the stockholders and directors, and
shall have such other duties as may be assigned to him from time to time by the
Board of Directors.
Section 4.7. President. Unless the Board of Directors otherwise
determines, the President shall be the chief executive officer and head of the
Corporation. Unless there is a Chairman of the Board, the President shall
preside at all meetings of directors and stockholders. Under the supervision
of the Board of Directors and of the executive committee, the President shall
have the general control and management of its business and affairs, subject,
however, to the right of the Board of Directors and of the executive committee
to confer any specific power, except such as may be by statute exclusively
conferred on the President, upon any other officer or officers of the
Corporation. The President shall perform and do all acts and things incident
to the position of President and such other duties as may be assigned to him
from time to time by the Board of Directors or the executive committee.
Section 4.8. Vice-Presidents. The Vice-Presidents shall perform such
of the duties of the President on behalf of the Corporation as may be
respectively assigned to them from time to time by the Board of Directors or by
the executive committee or by the President. The Board of Directors or the
executive committee may designate one of the Vice-Presidents as the Executive
Vice-
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President, and in the absence or inability of the President to act, such
Executive Vice-President shall have and possess all of the powers and discharge
all of the duties of the President, subject to the control of the board and of
the executive committee.
Section 4.9. Treasurer. The Treasurer shall have the care and custody
of all the funds and securities of the Corporation which may come into his
hands as Treasurer, and the power and authority to endorse checks, drafts and
other instruments for the payment of money for deposit or collection when
necessary or proper and to deposit the same to the credit of the Corporation in
such bank or banks or depository as the Board of Directors or the executive
committee, or the officers or agents to whom the Board of Directors or the
executive committee may delegate such authority, may designate, and he may
endorse all commercial documents requiring endorsements for or on behalf of the
Corporation. He may sign all receipts and vouchers for the payments made to
the Corporation. He shall render an account of his transactions to the Board
of Directors or to the executive committee as often as the board or the
committee shall require the same. He shall enter regularly in the books to be
kept by him for that purpose full and adequate account of all moneys received
and paid by him on account of the Corporation. He shall perform all acts
incident to the position of Treasurer, subject to the control of the Board of
Directors and of the executive committee. He shall when requested, pursuant to
vote of the Board of Directors or the executive committee, give a bond to the
Corporation conditioned for the faithful performance of his duties, the expense
of which bond shall be borne by the Corporation.
Section 4.10. Secretary. The Secretary shall keep the minutes of all
meetings of the Board of Directors and of the stockholders; he shall attend to
the giving and serving of all notices of the Corporation. Except as otherwise
ordered by the Board of Directors or the executive committee, he shall attest
the seal of the Corporation upon all contracts and instruments executed under
such seal and shall affix the seal of the Corporation thereto and to all
certificates of shares of capital stock of the Corporation. He shall have
charge of the stock certificate book, transfer book and stock ledger, and such
other books and papers as the Board of Directors or the executive committee may
direct. He shall, in general, perform all the duties of Secretary, subject to
the control of the Board of Directors and of the executive committee.
Section 4.11. Assistant Secretary. The Board of Directors or any two of
the officers of the Corporation acting jointly may appoint or remove one or
more Assistant Secretaries of the Corporation. Any Assistant Secretary upon
his appointment shall perform such duties of the Secretary, and also any and
all such other duties as the executive committee or the Board of Directors or
the President or the Executive Vice-President or the Treasurer or the Secretary
may designate.
Section 4.12. Assistant Treasurer. The Board of Directors or any two of
the officers of the Corporation acting jointly may appoint or remove one or
more Assistant Treasurers of the Corporation. Any Assistant Treasurer upon his
appointment shall perform such of the duties of the Treasurer, and also any and
all such other duties as the executive committee or the Board of Directors or
the President or the Executive Vice-President or the Treasurer or the Secretary
may designate.
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Section 4.13. Subordinate Officers. The Board of Directors may select
such subordinate officers as it may deem desirable. Each such officer shall
hold office for such period, have such authority, and perform such duties as
the Board of Directors may prescribe. The Board of Directors may, from time to
time, authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
ARTICLE V - STOCK
Section 5.1. Stock. Each stockholder shall be entitled to a
certificate or certificates of stock of the Corporation in such form as the
Board of Directors may from time to time prescribe. The certificates of stock
of the Corporation shall be numbered and shall be entered in the books of the
Corporation as they are issued. They shall certify the holder's name and
number and class of shares and shall be signed by both of (a) either the
President or a Vice-President, and (b) any one of the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary, and shall be sealed with
the corporate seal of the Corporation. If such certificate is countersigned
(1) by a transfer agent other than the Corporation or its employee, or, (2) by
a registrar other than the Corporation or its employee, the signature of the
officers of the Corporation and the corporate seal may be facsimiles. In case
any officer or officers who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or certificates shall
cease to be such officer or officers of the Corporation, whether because of
death, resignation or otherwise, before such certificate or certificates shall
have been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as
though the person or persons who signed such certificate or certificates or
whose facsimile signature shall have been used thereon had not ceased to be
such officer or officers of the Corporation.
Section 5.2. Fractional Share Interests. The Corporation may, but
shall not be required to, issue fractions of a share. If the Corporation does
not issue fractions of a share, it shall (a) arrange for the disposition of
fractional interests by those entitled thereto, (b) pay in cash the fair value
of fractions of a share as of the time when those entitled to receive such
fractions are determined, or (c) issue scrip or warrants in registered or
bearer form which shall entitle the holder to receive a certificate for a full
share upon the surrender of such scrip or warrants aggregating a full share. A
certificate for a fractional share shall, but scrip or warrants shall not
unless otherwise provided therein, entitle the holder to exercise voting
rights, to receive dividends thereon, and to participate in any of the assets
of the Corporation in the event of liquidation. The Board of Directors may
cause scrip or warrants to be issued subject to the conditions that they shall
become void if not exchanged for certificates representing full shares before a
specified date, or subject to the conditions that the shares for which scrip or
warrants are exchangeable may be sold by the Corporation and the proceeds
thereof distributed to the holders of scrip or warrants, or subject to any
other conditions which the Board of Directors may impose.
Section 5.3. Transfers of Stock. Subject to any transfer restrictions
then in force, the shares of stock of the Corporation shall be transferable
only upon its books by the holders thereof in person or by their duly
authorized attorneys or legal representatives and upon such transfer the old
certificates shall be surrendered to the Corporation by the delivery thereof to
the person in charge of the stock and transfer books and ledgers or to such
other person as the directors may designate by
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whom they shall be cancelled and new certificates shall thereupon be issued.
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 on
the part of any other person whether or not it shall have express or other
notice thereof save as expressly provided by the laws of Delaware.
Section 5.4. Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or the allotment of any rights, or entitled to exercise any rights
in respect of any change, conversion, or exchange of stock or for the purpose
of any other lawful action, the Board of Directors may fix, in advance, a
record date, which shall not be more than sixty (60) days nor less than ten
(10) days before the date of such meeting, nor more than sixty (60) days prior
to any other action. If no such record date is fixed by the Board of
Directors, the record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is
waived, at the close of business on the day next preceding the day on which the
meeting is held; the record date for determining stockholders entitled to
express consent to corporate action in writing without a meeting, when no prior
action by the Board of Directors is necessary, shall be the day on which the
first written consent is expressed; and 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 any
meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for
the adjourned meeting.
Section 5.5. Transfer Agent and Registrar. The Board of Directors may
appoint one or more transfer agents or transfer clerks and one or more
registrars and may require all certificates of stock to bear the signature or
signatures of any of them.
Section 5.6. Dividends.
1. Power to Declare. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property, or in
shares of the capital stock, subject to the provisions of the Certificate of
Incorporation and the laws of Delaware.
2. Reserves. Before payment of any dividend, there may be set aside
out of any funds of the Corporation available for dividends such sum or sums as
the directors from time to time, in their absolute discretion, think proper as
a reserve or reserves to meet contingencies, or for equalizing dividends, or
for repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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Section 5.7. Lost, Stolen or Destroyed Certificates. No certificates
for shares of stock of the Corporation shall be issued in place of any
certificate alleged to have been lost, stolen or destroyed, except upon
production of such evidence of the loss, theft or destruction and upon
indemnification of the Corporation and its agents to such extent and in such
manner as the Board of Directors may from time to time prescribe.
Section 5.8. Inspection of Books. The stockholders of the Corporation,
by a majority vote at any meeting of stockholders duly called, or in case the
stockholders shall fail to act, the Board of Directors shall have power from
time to time to determine whether and to what extent and at what times and
places and under what conditions and regulations the accounts and books of the
Corporation (other than the stock ledger) or any of them, shall be open to
inspection of stockholders; and no stockholder shall have any right to inspect
any account or book or document of the Corporation except as conferred by
statute or authorized by the Board of Directors or by a resolution of the
stockholders.
ARTICLE VI - MISCELLANEOUS MANAGEMENT PROVISIONS
Section 6.1. Checks, Drafts and Notes. All checks, drafts or orders
for the payment of money, and all notes and acceptances of the Corporation
shall be signed by such officer or officers, agent or agents as the Board of
Directors may designate.
Section 6.2. Notices.
1. Notices to directors may, and notices to stockholders shall, be
in writing and delivered personally or mailed to the directors or stockholders
at their addresses appearing on the books of the Corporation. Notice by mail
shall be deemed to be given at the time when the same shall be mailed. Notice
to directors may also be given by telegram, telecopy or orally, by telephone or
in person.
2. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation of the Corporation of
the Corporation or of these by-laws, a written waiver of notice, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein or the meeting or action to which such notice relates, shall be
deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting except when the person attends a
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
Section 6.3. Conflict of Interest. 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 or committee thereof which
authorized 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
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the board 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 (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 of the Corporation entitled to vote
thereon, and the contract or transaction as specifically approved in good faith
by vote of such 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 or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting
of the Board of Directors or of a committee which authorizes the contract or
transaction.
Section 6.4. Voting of Securities owned by this Corporation. Subject
always to the specific directions of the Board of Directors, (a) any shares or
other securities issued by any other Corporation and owned or controlled by
this Corporation may be voted in person at any meeting of security holders of
such other corporation by the President of this Corporation if he is present at
such meeting, or in his absence by the Treasurer of this Corporation if he is
present at such meeting, and (b) whenever, in the judgment of the President, it
is desirable for this Corporation to execute a proxy or written consent in
respect to any shares or other securities issued by any other Corporation and
owned by this Corporation, such proxy or consent shall be executed in the name
of this Corporation by the President, without the necessity of any
authorization by the Board of Directors, affixation of corporate seal or
countersignature or attestation by another officer, provided that if the
President is unable to execute such proxy or consent by reason of sickness,
absence from the United States or other similar cause, the Treasurer may
execute such proxy or consent. Any person or persons designated in the manner
above stated as the proxy or proxies of this Corporation shall have full right,
power and authority to vote the shares or other securities issued by such other
corporation and owned by this Corporation the same as such shares or other
securities might be voted by this Corporation.
ARTICLE VII - INDEMNIFICATION
Section 7.1. Right to Indemnification. Each person who was or is made
a party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of being or having been a director or
officer of the Corporation or serving or having served at the request of the
Corporation as a director, trustee, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan (an "Indemnitee"),
whether the basis of such proceeding is alleged action or failure to act in an
official capacity as a director, trustee, officer, employee or agent or in any
other capacity while serving as a director, trustee, officer, employee or
agent, shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists
or may hereafter be amended (but, in the case of any such amendment, only to
the extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto) (as used in this Article
VII, the "Delaware Law"), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid in settlement) reasonably incurred or suffered by such Indemnitee in
connection therewith and such indemnification shall continue as to an
Indemnitee who has ceased to be a director, trustee, officer,
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employee or agent and shall inure to the benefit of the Indemnitee's heirs,
executors and administrators; provided, however, that, except as provided in
Section 7.2 hereof with respect to Proceedings to enforce rights to
indemnification, the Corporation shall indemnity any such Indemnitee in
connection with a Proceeding (or part thereof) initiated by such Indemnitee
only if such Proceeding (or part thereof) was authorized by the board of
directors of the Corporation. The right to indemnification conferred in this
Article VII shall be a contract right and shall include the right to be paid by
the Corporation the expenses (including attorneys' fees) incurred in defending
any such Proceeding in advance of its final disposition (an "Advancement of
Expenses"); provided, however, that, if the Delaware Law so requires, an
Advancement of Expenses incurred by an Indemnitee shall be made only upon
delivery to the Corporation of an undertaking (an "Undertaking"), by or on
behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (a "Final Adjudication") that such Indemnitee is not
entitled to be indemnified for such expenses under this Article VII or
otherwise.
Section 7.2. Right of Indemnitee to Bring Suit. If a claim under
Section 7.1 hereof is not paid in full by the Corporation within sixty days
after a written claim has been received by the Corporation, except in the case
of a claim for an Advancement of Expenses, in which case the applicable period
shall be twenty days, the Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an Advancement of Expenses pursuant to the terms of an
Undertaking, the Indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the Indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by
the Indemnitee to enforce a right to an Advancement of Expenses) it shall be a
defense that, and (ii) in any suit by the Corporation to recover an Advancement
of Expenses pursuant to the terms of an Undertaking the Corporation shall be
entitled to recover such expenses upon a Final Adjudication that, the
Indemnitee has not met the applicable standard of conduct set forth in the
Delaware Law. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of
the Indemnitee is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct set forth in the Delaware Law, nor an actual
determination by the Corporation (including its board of directors, independent
legal counsel, or its stockholders) that the Indemnitee has not met such
applicable standard of conduct, shall create a presumption that the Indemnitee
has not met the applicable standard of conduct or, in the case of such a suit
brought by the Indemnitee, be a defense to such suit. In any suit brought by
the Indemnitee to enforce a right to indemnification or to an Advancement of
Expenses hereunder, or by the Corporation to recover an Advancement of Expenses
pursuant to the terms of an Undertaking, the burden of proving that the
Indemnitee is not entitled to be indemnified, or to such Advancement of
Expenses, under this Article VII or otherwise shall be on the Corporation.
Section 7.3. Non-Exclusivity of Rights. The rights to indemnification
and to the Advancement of Expenses conferred in this Article VII shall not be
exclusive of any other right which any person may have or hereafter acquire
under any statute, the Corporation's Certificate or Incorporation, by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
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Section 7.4. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under this Article VII or under the Delaware Law.
Section 7.5. Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from time to time
by the board of directors, grant rights to indemnification, and to the
Advancement of Expenses, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article VII with respect to the
indemnification and Advancement of Expenses of directors and officers of the
Corporation.
ARTICLE VIII - AMENDMENTS
Section 8.1. Amendments. The by-laws of the Corporation may be
altered, amended or repealed at any meeting of the Board of Directors upon
notice thereof in accordance with these by-laws, or at any meeting of the
stockholders by the vote of the holders of the majority of the stock issued and
outstanding and entitled to vote at such meeting, in accordance with the
provisions of the Certificate of Incorporation of the Corporation and of the
laws of Delaware.
ARTICLE IX - SPECIAL PROVISIONS
Section 9.1. Special Provisions. Notwithstanding any other provisions
herein to the contrary, (a) at any time while any Heritage Stockholder (as
defined in the Stockholder Agreement referred to below) has designated any
directors on the Corporation's Board of Directors, the majority of the total
number of directors required in order to constitute a quorum for any action set
forth in Schedule 2 to the Stockholder Agreement, dated as of July 3, 1995, as
amended from time to time, among the Corporation, the Heritage Stockholders and
the other stockholders of the Corporation (as amended and in effect from time
to time, the "Stockholder Agreement"), shall include all of the directors
designated by the Heritage Stockholders, pursuant to the Stockholder Agreement,
(b) for any action set forth on Schedule 2 to the Stockholder Agreement
(including any amendment to these By-Laws), the act of a majority of the
directors present at any meeting at which there is a quorum must include the
affirmative votes of all of the directors designated by the Heritage
Stockholders at any time while directors designated by the Heritage
Stockholders are serving on the Corporation's Board of Directors and (c) the
number of directors, the election of directors and the filling of vacancies on
the Board of Directors shall be determined in accordance with the provisions of
the Stockholder Agreement until the Stockholder Agreement has been terminated
in accordance with its terms. C:\CHA\ACI.BYL
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