EXHIBIT 3.2
BY-LAWS
OF
CASENEWHOLLAND INC.
(As amended and restated as of December 20, 2000)
ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware
shall be in the City of Wilmington. The Corporation may have such other offices
at such other places, within or without the State of Delaware, as the business
of the Corporation may require from time to time.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETING: All meetings of the stockholders for
the election of directors or for any other purpose may be held at such place,
within or without the State of Delaware, as shall be prescribed from time to
time by the Board of Directors and stated in the notice of the meeting.
SECTION 2. ANNUAL MEETINGS: Annual meetings of stockholders for the
election of directors and for the transaction of such other business as may
properly be brought before the meeting shall be held, commencing with the year
2000, at such date and time in each year as may be designated from time to time
by the Board of Directors.
SECTION 3. SPECIAL MEETINGS: Special meetings of the stockholders
for any proper purpose or purposes may be called to be held at any time by the
Board of Directors, and shall be called at the written request of stockholders
owning a majority of the outstanding stock of the Corporation entitled to vote.
SECTION 4. NOTICE OF MEETING: Written notice of the place, date and
hour of each meeting of stockholders, and of the purpose or purposes of each
special meeting of stockholders and of each annual meeting of stockholders to be
convened for any purpose in addition to the
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election of directors, shall be given, not less than ten nor more than sixty
days before the date of the meeting, either personally or by mail, to each
stockholder entitled to vote at such meeting. If mailed, such notice shall be
deemed given to any stockholder when deposited in the United States mail,
postage prepaid, directed to such stockholder at such stockholder's address as
it appears on the records of the Corporation.
SECTION 5. QUORUM AND ADJOURNMENT: At any meeting of stockholders,
the presence in person or by proxy of the holders of record of outstanding
shares of stock of the Corporation entitled to vote a majority of the votes
entitled to be voted at such meeting shall constitute a quorum for all purposes,
except as otherwise required by the Certificate of Incorporation or applicable
law.
If a quorum is present at any meeting of stockholders, any director
to be elected at such meeting shall be elected by a plurality vote, and the vote
of a majority of the votes entitled to be voted at such meeting by the holders
of shares of stock present or represented by proxy thereat shall be sufficient
for the transaction of any other business brought before the meeting, unless a
different vote is required by the Certificate of Incorporation or applicable
law.
In the absence of a quorum at any meeting, the meeting may be
adjourned from time to time to any time or place by the vote of a majority of
the votes entitled to be voted by the holders present or represented by proxy at
such meeting.
SECTION 6. VOTING: Each stockholder shall, at every meeting of
stockholders, be entitled to such vote in person or by proxy for each share of
stock held by such stockholder as is provided in the Certificate of
Incorporation (or, in the absence of such provision, as provided by law). No
proxy shall be voted or acted upon after three years from its date, unless the
proxy provides for a longer period.
SECTION 7. CONSENTS IN LIEU OF VOTING: Whenever the vote of
stockholders or any class or classes of stockholders at a meeting thereof is to
be taken for or in connection with any corporate action, the meeting and vote of
the stockholders of such class or classes of stockholders may be dispensed with
upon the written consent to such corporate action of stockholders having not
less than the minimum percentage of the total number of votes which would be
required to authorize and approve such corporate action at a meeting at which
all of the outstanding shares of such class or classes are voted. Prompt notice
of the taking of such corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who
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have not consented in writing at their respective addresses appearing on the
records of the Corporation.
SECTION 8. STOCKHOLDERS LIST: The officer who has charge of the
stock ledger of the Corporation shall prepare and make, at least ten days before
every meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order and showing the address of
each such stockholder and the number of shares registered in the name of each
such stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours, for a
period of at least ten days prior to the meeting, either at a place within the
city where the meeting is to be held, which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where the meeting
is to be held. The list shall be produced and kept at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
SECTION 9. SPECIAL VOTING PROVISIONS: Whenever the provisions of the
Certificate of Incorporation or law provide that the holders of shares of stock
of the Corporation of any class or series are entitled to vote as a separate
class or series on any matter, then, notwithstanding any other provision of
these By-Laws to the contrary, such holders shall be entitled to so vote and, to
the extent the Certificate of Incorporation contains any provision with respect
to the calling or holding of, or the quorum for, any meeting for the purpose of
such vote, such provisions of the Certificate of Incorporation shall govern.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. NUMBER, TERM OF OFFICE AND REMOVAL: The number of
directors which shall constitute the whole Board of Directors shall be as
determined from time to time by the Board of Directors, but shall not be less
than one nor more than nine. Each director shall hold office until his or her
successor is elected and qualified or until his or her earlier resignation or
removal. Any director or directors may be removed from office at any time, with
or without cause, by a vote of stockholders owning a majority of the outstanding
stock of the Corporation entitled to vote.
SECTION 2. VACANCIES: Vacancies and newly created directorships
resulting from any increase in the authorized number of directors, other than
directorships created by reason of the failure to pay
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dividends on some class or classes of stock of the Corporation or vacancies
arising in such directorships, may be filled by a majority of the directors then
in office, although less than a quorum, or by a sole remaining director. Each
director so elected shall hold office until a successor is elected and qualified
or until such director's earlier resignation or removal.
SECTION 3. ELECTION OF OFFICERS AND COMMITTEES: At the first meeting
of the Board of Directors following an annual meeting of stockholders, the Board
of Directors shall proceed to the election of the officers of the Corporation
and of the members of any committee of the Board of Directors to be elected.
SECTION 4. REGULAR MEETINGS: Regular meetings of the Board of
Directors may be held without notice at such time and place as shall from time
to time be determined by the Board of Directors.
SECTION 5. SPECIAL MEETINGS: Special meetings of the Board of
Directors may be called at any time by the Chairman, or in his or her absence,
the President, or, in the event of their absence or disability, by the
Secretary, and shall be called by the Secretary upon the written request of a
majority of the number of directors at the time in office. Any such special
meeting may be held at such place, either within or without the State of
Delaware, as shall be specified in the call, but if no place is specified, then
at the office of the Corporation in Lake Forest, Illinois. Notice of each
special meeting of the Board of Directors shall be given by the Secretary to
each director by (i) personal delivery or telephone, or telegram (with charges
prepaid), telex, telecopy or other similar transmission addressed and sent to
the director's usual business address as it appears on the records of the
Corporation, not less than twenty-four hours prior to such meeting, or (ii) mail
directed to such business address and deposited in the United States mail,
postage prepaid, at least three days prior to the meeting. The notice of any
special meeting of the Board of Directors need not specify any purpose or
purposes of such meeting. Notice of any special meeting of the Board of
Directors may be waived in writing by any director either before or after the
meeting. The attendance of a director at any special meeting of the Board of
Directors shall, without more, constitute a waiver of notice of such meeting.
SECTION 6. ORGANIZATION: The Chairman, or in his or her absence, the
President, or in their absence, a director chosen by a majority of the directors
present, shall preside at and act as chairman of each meeting of the Board of
Directors. The Secretary, or in his or her absence, an Assistant Secretary
designated by the chairman of the
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meeting, or in case of the absence of the Secretary and all Assistant
Secretaries, any person designated by the chairman of the meeting, shall act as
secretary of each meeting of the Board of Directors.
SECTION 7. QUORUM: A majority of the number of directors at the time
in office shall constitute a quorum for the transaction of business, and the
vote of the majority of the directors present at any meeting at which a quorum
is present, shall be the act of the Board of Directors. If at any meeting of the
Board of Directors a quorum is not present, a majority of the directors present
may adjourn the meeting from time to time, without notice other than adjournment
at the meeting, until a quorum shall be present.
SECTION 8. ACTION BY UNANIMOUS CONSENT: Any action required or
permitted to be taken at any meeting of the Board of Directors or any committee
thereof may be taken without a meeting, if all members of the Board of Directors
or of such committee, as the case may be, at the time in office, consent thereto
in writing, and the writing or writings are filed with the minutes of the
proceeding of the Board of Directors or such committee.
SECTION 9. COMPENSATION OF DIRECTORS: Each director, as such, shall
be entitled to receive reimbursement for reasonable expenses incurred in
attending meetings of the Board of Directors or any committee thereof or
otherwise in connection with his or her attention to the affairs of the
Corporation. In addition, each director, who is not at the time a regularly
compensated officer or employee of the Corporation or Case Corporation or any of
its direct or indirect subsidiaries, shall be entitled to such fee for services
as a director (and, if a member of any committee of the Board of Directors, such
fee for services as such member) as may be fixed from time to time by the Board
of Directors. Such fees may be fixed both for meetings attended and on an annual
basis, or either thereof, and may be payable currently or deferred.
SECTION 10. COMMITTEES: The Board of Directors may elect such
committees, each to consist of one or more directors, as it may from time to
time determine, which committees shall serve for such term and shall have and
may exercise such duties, functions and powers as the Board of Directors may
from time to time prescribe. All action taken by any such committee shall be
reported to the Board of Directors at such times as the Board of Directors shall
direct.
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ARTICLE IV
OFFICERS
SECTION 1. ELECTION AND TERM: The officers of the Corporation shall
be a President and a Secretary, each of whom shall be elected by the Board of
Directors to hold office until the first meeting of the Board of Directors after
the annual meeting of stockholders next following his or her election and until
his or her successor is qualified, subject to resignation or to earlier removal
as hereinafter provided. The Board of Directors may from time to time appoint or
authorize the appointment of such other officers (including a Chairman or one or
more Vice Chairmen) and agents as it shall deem advisable and as the business of
the Corporation may require.
Any officer, agent or employee elected or appointed by the Board of
Directors may be removed and replaced only by the Board of Directors, and may be
removed, with or without cause, at any time by a majority vote of the Board of
Directors at the time in office.
Any officer, agent or employee who is not elected or appointed by
the Board of Directors shall hold office at the discretion of the President. The
President may at any time in his or her discretion suspend, subject to the
approval of the Board of Directors at its next meeting, the authority of any
other officer, agent or employee of the Corporation.
SECTION 2. AUTHORITY AND DUTIES OF OFFICERS: The Chairman shall
preside at all meetings of the Board of Directors and of the stockholders. In
the absence or disability of the Chairman, the President shall have the powers
and duties of the Chairman. In the absence or disability of the Chairman and the
President, one of the Vice Chairmen (to be designated by the Chairman) shall
have the powers and duties of the Chairman.
The President shall be the chief executive officer of the
Corporation and shall have general supervision and direction of the business and
affairs of the Corporation. In the absence or disability of the President, an
officer (to be designated by the President) shall have the powers and duties of
the President.
The Secretary shall, except as otherwise determined by the Board of
Directors, attend and record all of the proceedings of all meetings of
stockholders and the Board of Directors, and, unless otherwise directed by any
such committee, of all committees of the Board
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of Directors, in books of the Corporation kept for that purpose; shall see that
all notices are given and records and reports properly kept and filed by the
Corporation as required by these By-Laws or as required by law; shall have
charge of and control over the records of the Corporation and the certificate
books, transfer books and stock ledgers, and such other books and papers as the
Board of Directors may direct; and shall be the custodian of the corporate seal
of the Corporation and see that it is affixed to all documents to be executed on
behalf of the Corporation under its seal.
The foregoing officers of the Corporation shall have such other
powers and perform such other duties, and the other officers of the Corporation
shall have such powers and perform such duties, as are incident to their
respective offices or as may be designated by the President, subject to the
supervision and direction of the Board of Directors.
SECTION 3. COMPENSATION: Any compensation of officers, agents or
employees elected or appointed by the Board of Directors shall be fixed from
time to time by the Board of Directors, or in such manner as the Board of
Directors may direct.
Any compensation of officers, agents or employees of the Corporation
who are not elected or appointed by the Board of Directors shall be fixed by the
President, subject to the provisions of these By-Laws or any resolutions adopted
by the Board of Directors.
No officer, agent or employee of the Corporation shall be prevented
from receiving such compensation by reason of the fact that he or she is also a
director of the Corporation.
ARTICLE V
INDEMNIFICATION
SECTION 1. GENERAL: The Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than any action by or in the right of the Corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and
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reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which the
person reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
SECTION 2. ACTION OR SUIT BY OR IN THE RIGHT OF THE CORPORATION: The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the Corporation and except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery of Delaware or such other court shall deem proper.
SECTION 3. EXPENSES: To the extent that a director, officer,
employee or agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections 1
and 2 of this Article V, or in defense of any claim, issue or matter therein, he
or she shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection therewith.
SECTION 4. AUTHORIZATION: Any indemnification under Sections 1 and 2
of this Article V (unless ordered by a court) shall be
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made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he or she has met the applicable standard
of conduct set forth in Sections 1 and 2. Such determination shall be made (i)
by a majority vote of the directors who were not parties to such action, suit or
proceeding, even though less than a quorum, or (ii) if there are no such
directors, or if such directors so direct, by independent legal counsel in a
written opinion, or (iii) by the stockholders.
SECTION 5. ADVANCEMENT OF EXPENSES: Expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in this
Article V. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate.
SECTION 6. OTHER RIGHTS: The indemnification and advancement of
expenses provided by, or granted pursuant to, the other subsections of this
Article V shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
SECTION 7. INSURANCE: The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him or her and incurred by him or her in any such capacity, or arising out of
his or her status as such, whether or not the Corporation would have the power
to indemnify him or her against such liability under the provisions of this
Article V. Insurance purchased by the Corporation in accordance with this
Article V may, but need not (i) be for the benefit of all directors, officers,
employees and agents of the Corporation and (ii) provide also for
indemnification or reimbursement to the Corporation of and for payments and
obligations to make payments by the Corporation to any of
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its directors, officers, employees or agents to the extent such payments or
obligations to make payments are permitted under Sections 1 and 6 of this
Article V.
SECTION 8. THE CORPORATION: For purposes of this Article V
references to "the Corporation* shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article V with respect to the resulting or surviving corporation as he
or she would have with respect to such constituent corporation if its separate
existence had continued.
SECTION 9. OTHER ENTERPRISES: For purposes of this Article V,
references to "other enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, officer, employee
or agent of the Corporation which imposes duties on, or involves services by,
such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith
and in a manner he or she reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the Corporation" as
referred to in this Article V or in Section 145 of the Delaware General
Corporation Law.
SECTION 10. CONTINUATION: The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article V shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
SECTION 11. CONTRACT: All rights to indemnification and advancement
of expenses provided by this Article V shall be deemed to be a contract between
the Corporation and each person referred to herein. Any repeal or modification
of this Article or any repeal or
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modification of relevant provisions of the Delaware General Corporation Law or
any other applicable law shall not in any way diminish any rights to
indemnification or advancement of expenses with respect to any state of facts
then or previously existing or any action, suit or proceeding previously or
thereafter brought or threatened based in whole or in part on such state of
facts.
ARTICLE VI
CERTIFICATE FOR SHARES OF STOCK, ETC.
SECTION 1. STOCK CERTIFICATES: Every holder of stock in the
Corporation shall be entitled to have a certificate signed by, or in the name of
the Corporation by, the Chairman, the President or a Vice Chairman and by the
Secretary or an Assistant Secretary of the Corporation, certifying the number of
shares owned by such holder of stock in the Corporation. The designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall
issue to represent such class or series of stock; provided that, except as
otherwise provided in the General Corporation Law of Delaware, in lieu of the
foregoing requirements, there may be set forth on the face or back of such
certificate a statement that the Corporation will furnish without charge to each
stockholder who so requests, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights.
If a certificate is countersigned (1) by a transfer agent other than
the Corporation or its employee or (2) by a registrar other than the Corporation
or its employee, the signatures thereon of the officers of the Corporation may
be facsimiles. In case any officer who has signed, or whose facsimile has been
placed upon a 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 or she were such officer at the date of issue.
SECTION 2. RECOGNITION OF PERSONS AS STOCKHOLDERS: The Corporation
shall be entitled to recognize the exclusive right of a person registered on its
books as the owner of a share or 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
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part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
SECTION 3. REGULATIONS, TRANSFER AGENTS AND REGISTRARS: The Board of
Directors shall have power and authority to make all such rules and regulations,
subject to any applicable requirement of law, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock. The Board of Directors may appoint one or more transfer agents and
registrars of transfer and may require all stock certificates to bear the
signature of a transfer agent and/or a registrar of transfer so appointed.
SECTION 4. LOST OR DESTROYED CERTIFICATES: The Board of Directors
may prescribe reasonable requirements (including a sufficient indemnity bond)
for the issue of a new certificate of stock to replace a certificate theretofore
issued by the Corporation and claimed to have been lost, destroyed or wrongfully
taken.
SECTION 5. FIXING DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD:
In order that the Corporation may determine the stockholders entitled to notice
of or to vote at any meeting of stockholders or any adjournment thereof, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which resolution fixing the record date is adopted by the Board of
Directors and which record date shall not be more than sixty nor less than ten
days before the date of such meeting. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may
fix a new record date for the adjourned meeting.
In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date 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.
In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which record date
shall not precede the
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date upon which the resolution fixing the record date is adopted, and which
record date shall be not more than sixty days prior to such action.
ARTICLE VII
CORPORATE SEAL
The corporate seal shall have inscribed the name of the Corporation,
the word "Delaware" and such other words or designs as the Board of Directors
may designate. The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
AMENDMENTS
These By-Laws may be altered, amended or repealed, and new By-Laws
may be adopted, by a majority vote of the number of directors at the time in
office or by a vote of stockholders owning a majority of the outstanding stock
of the Corporation entitled to vote.
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