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EXHIBIT 3.2
BY-LAWS
OF
AGCO CORPORATION
ARTICLE I
STOCKHOLDERS MEETINGS
1. PLACES OF MEETINGS. All meetings of stockholders
shall be held at such place or places in or outside of Delaware as the board of
directors may from time to time determine or as may be designated in the notice
of meeting or waiver of notice thereof, subject to any provisions of the laws
of Delaware.
2. ANNUAL MEETINGS. Unless otherwise determined from
time to time by the board of directors, the annual meeting of stockholders
shall be held each year for the election of directors and the transaction of
such other business as may properly come before the meeting on the first Monday
in the fourth month following the close of the fiscal year commencing at some
time between 10 A.M. and 3 P.M., if not a legal holiday and if a legal holiday,
then on the day following at the same time. If the annual meeting is not held
on the date designated, it may be held as soon thereafter as convenient and
shall be called the annual meeting. Written notice of the time and place of
the annual meeting shall be given by mail to each stockholder entitled to vote
at his address as it appears on the records of the corporation not less than
the minimum nor more than the maximum number of days permitted under the laws
of Delaware prior to the scheduled date thereof, unless such notice is waived
as provided by Article VIII of these By-Laws.
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3. SPECIAL MEETINGS. A special meeting of stockholders
may be called at any time by order of the board of directors or the executive
committee. Written notice of the time, place and specific purposes of such
meetings shall be given by mail to each stockholder entitled to vote thereat at
his address as it appears on the records of the corporation not less than the
minimum nor more than the maximum number of days prior to the scheduled date
thereof permitted under the laws of Delaware, unless such notice is waived as
provided in Article VIII of these By-Laws.
4. MEETINGS WITHOUT NOTICE. Meetings of the
stockholders may be held at any time without notice when all the stockholders
entitled to vote thereat are present in person or by proxy.
5. VOTING. At all meetings of stockholders, each
stockholder entitled to vote on the record date as determined under Article V,
Section 3 of these By-Laws or if not so determined as prescribed under the laws
of Delaware shall be entitled to one vote for each share of stock standing on
record in his name, subject to any restrictions or qualifications set forth in
the certificate of incorporation or any amendment thereto.
6. QUORUM. At any stockholders' meeting, a majority of
the number of shares of stock outstanding and entitled to vote thereat present
in person or by proxy shall constitute a quorum but a smaller interest may
adjourn any meeting from time to time, and the meeting may be held as adjourned
without further notice, subject to such limitation as may be imposed under the
laws of Delaware. When a quorum is present at any meeting, a majority of the
number of shares of stock entitled to vote present thereat shall decide any
question brought before such meeting unless the question is one upon which a
different vote is required by express provision of the laws of Delaware, the
certificate of incorporation or these By-Laws, in which case such express
provisions shall govern.
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7. LIST OF STOCKHOLDERS. At least ten days before every
meeting, a complete list of the stockholders entitled to vote at the meeting,
arranged in alphabetical order and showing the address of and the number of
shares registered in the name of each stockholder, shall be prepared by the
secretary or the transfer agent in charge of the stock ledger of the
corporation. Such list shall be open for examination by any stockholder as
required by the laws of Delaware. The stock ledger shall be the only evidence
as to who are the stockholders entitled to examine such list or the books of
the corporation or to vote in person or by proxy at such meeting.
8. NO ACTION IN WRITING. Any action required or
permitted to be taken by the stockholders of the Corporation must be effected
at an annual or special meeting of stockholders of the Corporation and may not
be effected by any consent in writing by such stockholders.
9. NOTICE OF BUSINESS. No business may be transacted at
any meeting of stockholders, whether annual or special, other than business
that is either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the board of directors (or any duly
authorized committee thereof), (b) otherwise properly brought before the
meeting by or at the direction of the board of directors (or any duly
authorized committee thereof) or (c) otherwise properly brought before the
meeting by any stockholder of the Corporation (i) who is a stockholder of
record on the date of the giving of the notice provided for in this Section 9
of this Article I and on the record date for the determination of stockholders
entitled to vote at such meeting and (ii) who complies with the notice
procedures set forth in Section 9 of this Article I. The nomination by a
stockholder of any person for election as a director, other than the persons
nominated by the board of directors or any duly authorized committee thereof,
shall be considered business other than business specified in clauses (a) and
(b) above and shall be permitted only upon compliance with the requirements of
this Section 9 of this Article I.
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In addition to any other applicable requirements for
business to be properly brought before a meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
Secretary of the Corporation.
In the case of a meeting of stockholders which is an
annual meeting, to be timely, a stockholder's notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which such notice of the date of the annual meeting was mailed or
such public disclosure of the date of the annual meeting was made, whichever
first occurs. In the case of a meeting of stockholders which is not an annual
meeting, to be timely, a stockholder's notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days prior
to the meeting; provided, however, that in the event that less than forty-five
(45) days' notice or prior public disclosure of the date of the meeting is
given or made to stockholders, notice by the stockholder in order to be timely
must be so received not later than the close of business on the tenth (10) day
following the day on which such notice of the date of the meeting was mailed or
such public disclosure was made, whichever first occurs.
To be in proper written form, a stockholder's notice
to the secretary must be set forth as to each matter such stockholder proposes
to bring before the meeting (i) a brief description of the business described
to be brought before the meeting and
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the reasons for conducting such business at the meeting, (ii) the name and
record address of such stockholder, (iii) the class or series and number of
shares of capital stock of the Corporation which are owned beneficially or of
record by such stockholder, (iv) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such
business, (v) a representation that such stockholder intends to appear in
person or by proxy at the meeting to bring such business before the meeting,
and (vi) in the case of the nomination of a person as a director, a brief
description of the background and credentials of such person including (A) the
name, age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) the class and number of
shares of the Corporation which are beneficially owned by such person, and (D)
any other information relating to such person that is required to be disclosed
in solicitations of proxies for election of Directors, or as otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including without limitation such person's written
consent to being named in the proxy statement as a nominee and to serving as a
director if elected).
No business shall be conducted at a meeting of
stockholders except business brought before such meeting in accordance with the
procedures set forth in this Section 9 of this Article I, provided, however,
that, once business has been properly brought before a meeting in accordance
with such procedures, nothing in this Section 9 of this Article I shall be
deemed to preclude discussion by any stockholder of any such business. If the
chairman of a meeting determines that business was not properly brought before
the meeting in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.
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ARTICLE II
BOARD OF DIRECTORS
1. NUMBER AND ELECTION OF DIRECTORS. The business and
affairs of the Corporation shall be managed by or under the direction of a
Board of Directors consisting of not less than three nor more than 13
directors, the exact number of directors to be determined from time to time by
resolution adopted by the affirmative vote of a majority of the directors then
in office. The directors shall be divided into three classes, designated Class
I, Class II and Class III. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
Board of Directors. Immediately following the adoption by the Corporation of
this by-law, a majority of the Board of Directors shall elect Class I directors
for a one-year term, Class II directors for a two-year term and Class III
directors for a three-year term. At the next ensuing annual meeting of
stockholders (the "First Meeting"), the term of office of the Class I directors
shall expire and successors to the Class I directors shall be elected for a
three-year term. At the next ensuing annual meeting of stockholders held after
the First Meeting (the "Second Meeting"), the term of office of the Class II
directors shall expire and successors to the Class II directors shall be
elected for a three-year term. At the next ensuing annual meeting of
stockholders held after the Second Meeting, the term of office of the Class III
directors shall expire and successors to the Class III directors shall be
elected for a three-year term. Thereafter, at each annual meeting of
stockholders, successors to the class of directors whose term expires at that
annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly equal
as possible, but in no case shall a decrease in the number of directors shorten
the term of any incumbent director.
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A director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office.
Notwithstanding the foregoing, whenever the holders
of any one or more classes or series of preferred stock issued by the
Corporation, if any, shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the
election, term of office, filling of vacancies and other features of such
directorships shall be governed by the terms of the Restated Certificate of
Incorporation applicable thereto, and such directors so elected shall not be
divided into classes pursuant to this Section 1 of this Article III unless
expressly provided by such terms.
2. POWERS. The business and affairs of the Corporation
shall be carried on by or under the direction of the board of directors, which
shall have all the powers authorized by the laws of Delaware, subject to such
limitations as may be provided by the certificate of incorporation or these
By-Laws.
3. COMPENSATION. The board of directors may from time
to time by resolution authorize the payment of fees or other compensation to
the directors for services as such to the corporation, including, but not
limited to, fees for attendance at all meetings of the board or of the
executive or other committees, and determine the amount of such fees and
compensation. Directors shall in any event be paid their traveling expenses
for attendance at all meetings of the board or of the executive or other
committees. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity and receiving
compensation therefor in amounts authorized or otherwise approved from time to
time by the board or the executive committee.
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4. MEETINGS AND QUORUM. Meetings of the board of
directors may be held either in or outside of Delaware. A quorum shall be
one-third the then authorized total number of directors, but not less than two
directors. A director will be considered present at a meeting, even though not
physically present, to the extent and in the manner authorized by the laws of
Delaware.
The board of directors elected at any annual stockholders'
meeting shall, at the close of that meeting without further notice if a quorum
of directors be then present or as soon thereafter as may be convenient, hold a
meeting for the election of officers and the transaction of any other business.
At such meeting they shall elect a president, a secretary and a treasurer, and
such other officers as they may deem proper, none of whom except the chairman
of the board, if elected, need be members of the board of directors.
The board of directors may from time to time provide for the
holding of regular meetings with or without notice and may fix the times and
places at which such meetings are to be held. Meetings other than regular
meetings may be called at any time by the president or the chairman of the
board and must be called by the president or by the secretary or an assistant
secretary upon the request of any director.
Notice of each meeting, other than a regular meeting (unless
required by the board of directors), shall be given to each director by mailing
the same to each director at his residence or business address at least two
days before the meeting or by delivering the same to him personally or by
telephone or telegraph to him at least one day before the meeting unless, in
case of exigency, the chairman of the board, the president or secretary shall
prescribe a shorter notice to be given personally or by telephone, telegraph,
cable or wireless to all or any one or more of the directors at their
respective residences or places of business.
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Notice of any meeting shall state the time and place of such
meeting, but need not state the purpose thereof unless otherwise required by
the laws of Delaware, the certificate of incorporation, the By-Laws, or the
board of directors.
5. EXECUTIVE COMMITTEE. The board of directors may by
resolution passed by a majority of the whole board provide for an executive
committee of two or more directors and shall elect the members thereof to serve
during the pleasure of the board and may designate one of such members to act
as chairman. The board may at any time change the membership of the committee,
fill vacancies in it, designate alternate members to replace any absent or
disqualified members at any meeting of the committee, or dissolve it.
During the intervals between the meetings of the
board of directors, the executive committee shall perform all the powers of the
Board except as limited by the General Corporation Law of the State of Delaware
or by the Company's Certificate of Incorporation or By-Laws.
The executive committee may determine its rules of
procedure and the notice to be given of its meetings, and it may appoint such
committees and assistants as it shall from time to time deem necessary. A
majority of the members of the committee shall constitute a quorum.
6. AUDIT COMMITTEE. The functions of the audit
committee shall be to meet with external auditors to discuss the current year
audit plan; meet with external auditors to discuss the results of the audit and
their opinion regarding the fairness of the annual financial statements; review
audit fees and fees for management advisory services; meet with management to
discuss the internal audit plan and current staffing; meet with management,
internal and external auditors to discuss the auditor's "management letter" and
management's response; and meet with management and the internal auditors to
discuss the corporate control
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environment and regulatory compliance. The audit committee is hereby
authorized to perform such functions. The audit committee shall meet once
before the external audit begins and again near the completion date with
meetings at other times as appropriate.
7. COMPENSATION COMMITTEE. The functions of the
compensation committee shall be to review, approve, recommend and report to the
chief executive officer and the board matters specifically relative to the
compensation of the Company's chief executive officer and other key executives
and administration of the Company's 1991 Stock Option Plan and Management
Incentive Compensation Plan, and the compensation committee is hereby
authorized to perform such functions.
8. NOMINATING COMMITTEE. The functions of the
nominating committee are to identiy candidates and recommend to the board
nominees for membership on the board of directors, recommend candidates for
membership and chairmanship of standing committees, perform annual evaluations
of board performance and recommend actions to improve board performance and
governance. Nominations for board membership shall be consistent with criteria
approved by a majority of the whole board for director selection. In
nominations for committee membership and chairmanship the nominating committee
shall:
a. include the chairman of the board, chief
executive officer and chairmen of the standing committees as members of the
executive committee;
b. include the chairman of the board and the
chief executive officer as members of the strategic planning committee;
c. include only outside directors as members of
the audit, compensation and nominating committees; and
d. consider differences in individual director
expertise and availability and the efficiencies of continuity of committee
experience versus the desirability of altering committee composition at
reasonable intervals.
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9. OTHER COMMITTEES. The board of directors may by
resolution provide for such other committees as it deems desirable and may
discontinue the same at its pleasure. Each such committee shall have the
powers and perform such duties, not inconsistent with law, as may be assigned
to it by the board.
10. ACTION WITHOUT MEETINGS. Any action required or
permitted to be taken at any meeting of the board of directors or any committee
thereof may be taken without meeting by written consent setting forth the
action so taken signed by all of the directors entitled to vote with respect to
the subject matter thereof.
ARTICLE III
OFFICERS
1. TITLES AND ELECTION. The officers of the corporation
shall be a president, a secretary and a treasurer, who shall initially be
elected as soon as convenient by the board of directors and thereafter, in the
absence of earlier resignations or removals, shall be elected at the first
meeting of the board following any annual stockholders' meeting, each of whom
shall hold office at the pleasure of the board except as may otherwise be
approved by the board or executive committee, or until his earlier resignation,
removal under these By-Laws or other termination of his employment. Any person
may hold more than one office if the duties can be consistently performed by
the same person, and to the extent permitted by the laws of Delaware.
The board of directors, in its discretion, may also
at any time elect or appoint a chairman of the board of directors who shall be
a director, and one or more vice presidents, assistant secretaries and
assistant treasurers and such other officers as it may deem advisable, each of
whom shall hold office at the pleasure of the board, except as may otherwise be
approved by the board or executive committee, or until his earlier
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resignation, removal or other termination of employment, and shall have such
authority and shall perform such duties as may be prescribed or determined from
time to time by the board or in case of officers other than the chairman of the
board, it not so prescribed or determined by the board, as the president or the
then senior executive officer may prescribe or determine.
The board of directors may require any officer or
other employee or agent to give bond for the faithful performance of his duties
in such form and with such sureties as the board may require.
2. DUTIES. Subject to such extension, limitations, and
other provisions as the board of directors or the By-Laws may from time to time
prescribe or determine, the following officers shall have the following powers
and duties:
(a) CHAIRMAN OF THE BOARD. The chairman of the
board, when present, shall preside at all meetings of the stockholders and of
the board of directors and shall be charged with general supervision of the
management and policy of the corporation, and shall have such other powers and
perform such other duties as the board of directors may prescribe from time to
time.
(b) PRESIDENT. Subject to the board of directors
and the provisions of these By-Laws, the president shall be the chief executive
officer of the corporation, shall exercise the powers and authority and perform
all of the duties commonly incident to his office, shall in the absence of the
chairman of the board preside at all meetings of the stockholders and of the
board of directors if he is a director, and shall perform such other duties as
the board of directors or executive committee shall specify from time to time.
The president or a vice president, unless some other person is thereunto
specifically authorized by the board of directors or executive committee, shall
sign all bonds, debentures, promissory notes, deeds and contracts of the
corporation.
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(c) VICE PRESIDENT. The vice president or vice
presidents shall perform such duties as may be assigned to them from time to
time by the board of directors or by the president if the board does not do so.
In the absence or disability of the president, the vice presidents in order of
seniority may, unless otherwise determined by the board, exercise the powers
and perform the duties pertaining to the office of president, except that if
one or more executive vice presidents has been elected or appointed, the person
holding such office in order or seniority shall exercise the powers and perform
the duties of the office of president.
(d) SECRETARY. The secretary or in his absence
the assistant secretary shall keep the minutes of all meetings of stockholders
and of the board of directors, give and serve all notices, attend to such
correspondence as may be assigned to him, keep in safe custody the seal of the
corporation, and affix such seal to all such instruments properly executed as
may require it, and shall have such other duties and powers as may be
prescribed or determined from time to time by the board of directors or by the
president if the board does not do so.
(e) TREASURER. The treasurer, subject to the
order of the board of directors, shall have the care and custody of the moneys,
funds, valuable papers and documents of the corporation (other than his own
bond, if any, which shall be in the custody of the president), and shall have,
under the supervision of the board of directors, all the powers and duties
commonly incident to his office. He shall deposit all funds of the corporation
in such bank or banks, trust company or trust companies, or with such firm or
firms doing a banking business as may be designated by the board of directors
or by the president if the board does not do so. He may endorse for deposit or
collection all checks, notes, etc., payable to the corporation or to its order.
He shall keep accurate books of account of the corporation's
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transactions, which shall be the property of the corporation, and together with
all its property in his possession, shall be subject at all times to the
inspection and control of the board of directors. The treasurer shall be
subject in every way to the order of the board of directors, and shall render
to the board of directors and/or the president of the corporation, whenever
they may require it, an account of all his transactions and of the financial
condition of the corporation. In addition to the foregoing, the treasurer
shall have such duties as may be prescribed or determined from time to time by
the board of directors or by the president if the board does not do so.
3. DELEGATION OF AUTHORITY. The board of directors or
the executive committee may at any time delegate the powers and duties of any
officer for the time being to any other officer, director or employee.
4. COMPENSATION. The compensation of the chairman of
the board, the president, all vice presidents, the secretary and the treasurer
shall be fixed by the board of directors or the executive committee, and the
fact that any officer is a director shall not preclude him from receiving
compensation or from voting upon the resolution providing the same.
ARTICLE IV
RESIGNATIONS, VACANCIES AND REMOVALS
1. RESIGNATIONS. Any director or officer may resign at
any time by giving written notice thereof to the board of directors, the
president or the secretary. Any such resignation shall take effect at the time
specified therein or, if the time be not specified, upon receipt thereof; and
unless otherwise specified therein, the acceptance of any resignation shall not
be necessary to make it effective.
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2. VACANCIES. (a) DIRECTORS. When the office of any
directors, becomes vacant or unfilled whether by reason of death, resignation,
removal, increase in the authorized number of directors or otherwise, such
vacancy or vacancies may be filled by the remaining director or directors,
although less than a quorum. Any director so elected by the board shall serve
until the election and qualification of his successor or until his earlier
resignation or removal as provided in these By-Laws. The directors may also
reduce their authorized number by the number of vacancies in the board,
provided such reduction does not reduce the board to less than the minimum
authorized by the Charter or the laws of Delaware.
(b) OFFICERS. The board of directors may at any
time or from time to time fill any vacancy among the officers of the
corporation.
3. REMOVALS. (a) DIRECTORS. The stockholders may
remove directors from office only for cause.
(b) OFFICERS. Subject to the provisions of any
validly existing agreement, the board of directors may at any meeting remove
from office any officer, with or without cause, and may elect or appoint a
successor; provided that if action is to be taken to remove the president the
notice of meeting or waiver of notice thereof shall state that one of the
purposes thereof is to consider and take action on his removal.
ARTICLE V
CAPITAL STOCK
1. CERTIFICATE OF STOCK. Every stockholder shall be
entitled to a certificate or certificates for shares of the capital stock of
the corporation in such form as may be prescribed or authorized by the board of
directors, duly numbered and setting forth the number and
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kind of shares represented thereby. Such certificates shall be signed by the
chairman of the board, the president or a vice president and by the treasurer
or an assistant treasurer or by the secretary or an assistant secretary. Any
or all of such signatures may be in facsimile if and to the extent authorized
under the laws of Delaware.
In case any officer, transfer agent or registrar who
has signed or whose facsimile signature has been placed on a certificate has
ceased to be such officer, transfer agent or registrar before the certificate
has been issued, such certificate may nevertheless be issued and delivered by
the corporation with the same effect as if he were such officer, transfer agent
or registrar at the date of issue.
2. TRANSFER OF STOCK. Shares of the capital stock of
the corporation shall be transferable only upon the books of the corporation
upon the surrender of the certificate or certificates properly assigned and
endorsed for transfer. If the corporation has a transfer agent or agents or
transfer clerk and registrar of transfers acting on its behalf, the signature
of any officer or representative thereof may be in facsimile.
The board of directors may appoint a transfer agent
and one or more cotransfer agents and a registrar and one or more coregistrars
of transfer and may make or authorize the transfer agents to make all such rule
and regulations deemed expedient concerning the issue, transfer and
registration of shares of stock.
3. RECORD DATES. (a) In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock
or for the purpose of any other
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lawful action, the board of directors may fix in advance a record date which,
in the case of a meeting, shall be not less than the minimum nor more than the
maximum number of days prior to the scheduled date of such meeting permitted
under the laws of Delaware and which, in the case of any other action, shall be
not more than the maximum number of days prior to any such action permitted by
the laws of Delaware.
(b) If no such record date is fixed by the board,
the record date shall be that prescribed by the laws of Delaware.
(c) A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to an
adjournment of the meeting; provided, however, that the board of directors may
fix a new record date for the adjourned meeting.
4. LOST CERTIFICATES. In case of loss or mutilation or
destruction of a stock certificate, a duplicate certificate may be issued upon
such terms as may be determined or authorized by the board of directors or
executive committee or by the president if the board or the executive committee
does not do so.
ARTICLE VI
FISCAL YEAR, BANK DEPOSITS, CHECKS, ETC.
1. FISCAL YEAR. The fiscal year of the corporation
shall commence or end at such time as the board of directors may designate.
2. BANK DEPOSITS, CHECKS, ETC. The funds of the
corporation shall be deposited in the name of the corporation or of any
division thereof in such banks or trust companies in the United States or
elsewhere as may be designated from time to time by the board of directors or
executive committee, or by such officer or officers as
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the board or executive committee may authorize to make such designations.
All checks, drafts or other orders for the withdrawal
of funds from any bank account shall be signed by such person or persons as may
be designated from time to time by the board of directors or executive
committee or as may be designated by an officer or officers authorized by the
board of directors or executive committee to make such designations. The
signatures on checks, drafts or other orders for the withdrawal of funds may be
in facsimile if authorized in the designation.
ARTICLE VII
BOOKS AND RECORDS
1. PLACE OF KEEPING BOOKS. Unless otherwise expressly
required by the laws of Delaware, the books and records of the corporation may
be kept outside of Delaware.
2. EXAMINATION OF BOOKS. Except as may otherwise be
provided by the laws of Delaware, the certificate of incorporation or these
By-Laws, the board of directors shall have power to determine from time to time
whether and to what extent and at what times and places and under what
conditions any of the accounts, records and books of the corporation are to be
open to the inspection of any stockholder. No stockholder shall have any right
to inspect any account or book or document of the corporation except as
prescribed by statute or authorized by express resolution of the stockholders
or of the board of directors.
ARTICLE VIII
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NOTICES
1. REQUIREMENTS OF NOTICE. Whenever notice is required
to be given by statute, the certificate of incorporation or these By-Laws, it
shall not mean personal notice unless so specified, but such notice may be
given in writing by depositing the same in a post office letter box, or mail
chute, postpaid and addressed to the person to whom such notice is directed at
the address of such person on the records of the corporation, and such notice
shall be deemed given at the time when the same shall be thus mailed.
2. WAIVERS. Any stockholder, director or officer may,
in writing or by telegram or cable, at any time waive any notice or other
formality required by statute, the certificate of incorporation or these
By-Laws. Such waiver of notice, whether given before or after any meeting or
action, shall be deemed equivalent to notice. Presence of a stockholder either
in person or by proxy at any stockholders' meeting and presence of any director
at any meeting of the board of directors shall constitute a waiver of such
notice as may be required by any statute, the certificate of incorporation or
these By-Laws.
ARTICLE IX
SEAL
The corporate seal of the corporation shall consist of two
concentric circles between which shall be the name of the corporation and in
the center of which shall be inscribed "Corporate Seal, Delaware."
ARTICLE X
POWERS OF ATTORNEY
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The board of directors or the executive committee may
authorize one or more of the officers of the corporation to execute powers of
attorney delegating to named representatives or agents power to represent or
act on behalf of the corporation, with or without power of substitution.
In the absence of any action by the board or the executive
committee, the president, any vice president, the secretary or the treasurer of
the corporation may execute for and on behalf of the corporation waivers of
notice of stockholders' meetings and proxies for such meetings in any company
in which the corporation may hold voting securities.
ARTICLE XI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. DEFINITIONS. As used in this article, the term
"person" means any past, present or future director or officer of the
corporation or a designated officer of an operating division of the
corporation.
2. INDEMNIFICATION GRANTED. The corporation shall
indemnify, defend and hold harmless against all liability, loss and expenses
(including attorneys' fees reasonably incurred), to the full extent and under
the circumstances permitted by the Delaware General Corporation Law of the
State of Delaware in effect from time to time, any person as defined above,
made or threatened to be made a party to any threatened, pending or completed
action, suit or proceeding whether civil, criminal, administrative or
investigative by reason of the fact that he is or was a director, officer of
the corporation or designated officer of an operating division of the
corporation, or is or was as an employee or agent of the corporation acting as
a director, officer, employee or agent of another company or other enterprise
in which the corporation owns, directly or indirectly, an equity or other
interest or of which it may be a creditor.
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If a person indemnified herein must retain an attorney
directly, the corporation may, in its discretion, pay the expenses (including
attorneys' fees) incurred in defending any proceeding in advance of its final
disposition, provided, however, that the payment of expenses incurred by a
director or officer in advance of the final disposition of the proceeding shall
be made only upon receipt of an undertaking by the director or officer to repay
all amounts advanced if it should be ultimately determined that the director or
officer is not entitled to be indemnified under this article or otherwise.
This right of indemnification shall not be deemed exclusive of
any other rights to which a person indemnified herein may be entitled by
By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, and shall continue as to a person who has ceased to be a director,
officer, designated officer, employee or agent and shall inure to the benefit
of the heirs, executors, administrators and other legal representatives of such
person. It is not intended that the provisions of this article be applicable
to, and they are not to be construed as granting indemnity with respect to,
matters as to which indemnification would be in contravention of the laws of
Delaware or of the United States of America whether as a matter of public
policy or pursuant to statutory provision.
3. MISCELLANEOUS. The board of directors may also on
behalf of the corporation grant indemnification to any individual other than a
person defined herein to such extent and in such manner as the board in its
sole discretion may from time to time and at any time determine.
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ARTICLE XII
AMENDMENTS
These By-Laws may be amended or repealed either:
(a) at any meeting of stockholders at which a quorum
is present by vote of a majority of the number of shares of stock entitled to
vote present in person or by proxy at such meeting as provided in Article I
Sections 5 and 6 of these By-Laws, or
(b) at any meeting of the board of directors by a
majority vote of the directors then in office;
provided the notice of such meeting of stockholders or
directors or waiver of notice thereof contains a statement of the substance of
the proposed amendment or repeal.
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