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EXHIBIT 3.6
BY-LAWS
OF
NEW GOODMAN CORP.
ARTICLE I
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Meetings of Stockholders
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Section 1. ANNUAL MEETINGS. The annual meeting of stockholders shall be
held at such time and place and on such date in each year as may be fixed by the
board of directors and stated in the notice of the meeting, for the election of
directors, the consideration of reports to be laid before such meeting and the
transaction of such other business as may properly come before the meeting.
Section 2. SPECIAL MEETINGS. Special meetings of the stockholders shall
be called upon the written request of the chairman of the board of directors,
the president, the directors by action at a meeting, a majority of the directors
acting without a meeting, or of the holders of shares entitling them to exercise
a majority of the voting power of the Corporation entitled to vote thereat.
Calls for such meetings shall specify the purposes thereof. No business other
than that specified in the call shall be considered at any special meeting.
Section 3. NOTICES OF MEETINGS. Unless waived, and except as provided in
Section 230 of the General Corporation Law of the State of Delaware, written
notice of each annual or special meeting stating the date, time, place and
purposes thereof shall be given by personal delivery or by mail to each
stockholder of record entitled to vote at or entitled to notice of the meeting,
not more than sixty days nor less than ten days before any such meeting. If
mailed, such notice shall be directed to the stockholder at his address as the
same appears upon the records of the Corporation. Any stockholder, either before
or after any meeting, may waive any notice required to be given by law or under
these By-Laws.
Section 4. PLACE OF MEETINGS. Meetings of stockholders shall be held at
the principal office of the Corporation unless the board of directors determines
that a meeting shall be held at some other place within or without the State of
Delaware and causes the notice thereof to so state.
Section 5. QUORUM. The holders of shares entitling them to exercise a
majority of the voting power of the Corporation entitled to vote at any meeting,
present in person or by
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proxy, shall constitute a quorum for the transaction of business to be
considered at such meeting; provided, however, that no action required by law or
by the Certificate of Incorporation or these By-Laws to be authorized or taken
by the holders of a designated proportion of the shares of any particular class
or of each class may be authorized or taken by a lesser proportion; and
provided, further, that if a separate class vote is required with respect to any
matter, the holders of a majority of the outstanding shares of such class,
present in person or by proxy, shall constitute a quorum of such class, and the
affirmative vote of the majority of shares of such class so present shall be the
act of such class. The holders of a majority of the voting shares represented at
a meeting, whether or not a quorum is present, may adjourn such meeting from
time to time, until a quorum shall be present.
Section 6. RECORD DATE. The board of directors may fix a record date for
any lawful purpose, including, without limiting the generality of the foregoing,
the determination of stockholders entitled to (i) receive 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, (ii) receive payment of any
dividend or other distribution or allotment of any rights, or (iii) exercise any
rights in respect of any change, conversion or exchange of stock. Such record
date shall not precede the date on which the resolution fixing the record date
is adopted by the board of directors. Such record date shall not be more than
sixty days nor less than ten days before the date of such meeting, nor more than
sixty days before the date fixed for the payment of any dividend or distribution
or the date fixed for the receipt or the exercise of rights, nor more than ten
days after the date on which the resolution fixing the record date for such
written consent is adopted by the board of directors, as the case may be.
If a record date shall not be fixed in respect of any such matter, the
record date shall be determined in accordance with the General Corporation Law
of the State of Delaware.
Section 7. PROXIES. A person who is entitled to attend a stockholders'
meeting, to vote thereat, or to execute consents, waivers or releases, may be
represented at such meeting or vote thereat, and execute consents, waivers and
releases, and exercise. any of his other rights, by proxy or proxies appointed
by a writing signed by such person.
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ARTICLE II
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Directors
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Section 1. NUMBER OF DIRECTORS. Until changed in accordance with the
provisions of this section, the number of directors of the Corporation, none of
whom need be stockholders, shall be one (1). The number of directors may be
fixed or changed by amendment of these By-Laws or by resolution of the board of
directors.
Section 2. ELECTION OF DIRECTORS. Directors shall be elected at the
annual meeting of stockholders, but when the annual meeting is not held or
directors are not elected thereat, they may be elected at a special meeting
called and held for that purpose. Such election shall be by ballot whenever
requested by any stockholder entitled to vote at such election, but unless such
request is made the election may be conducted in any manner approved at such
meeting.
At each meeting of stockholders for the election of directors, the
persons receiving the greatest number of votes shall be directors.
Section 3. TERM OF OFFICE. Each director shall hold office until the
annual meeting next succeeding his election and until his successor is elected
and qualified, or until his earlier resignation, removal from office or death.
Section 4. REMOVAL. All the directors, or all the directors of a
particular class, or any individual director may be removed from office, without
assigning any cause, by the vote of the holders of a majority of the voting
power entitling them to elect directors in place of those to be removed.
Section 5. VACANCIES. Vacancies in the board of directors may be filled
by a majority vote of the remaining directors until an election to fill such
vacancies is held. Stockholders entitled to elect directors shall have the right
to fill any vacancy in the board (whether the same has been temporarily filled
by the remaining directors or not) at any meeting of the stockholders called for
that purpose, and any directors elected at any such meeting of stockholders
shall serve until the next annual election of directors and until their
successors are elected and qualified.
Section 6. QUORUM AND TRANSACTION OF BUSINESS. A majority of the whole
authorized number of directors shall constitute a quorum for the transaction of
business, except that a majority of the directors in office shall constitute a
quorum for filling a vacancy on the board. Whenever less than a quorum is
present at the time and place appointed for any meeting of the
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board, a majority of those present may adjourn the meeting from time to time,
until a quorum shall be present. The act of a majority of the directors present
at a meeting at which a quorum is present shall be the act of the board.
Section 7. ANNUAL MEETING. Annual meetings of the board of directors
shall be held immediately following annual meetings of the stockholders, or as
soon thereafter as is practicable. If no annual meeting of the stockholders is
held, or if directors are not elected thereat, then the annual meeting of the
board of directors shall be held immediately following any special meeting of
the stockholders at which directors are elected, or as soon thereafter as is
practicable. If such annual meeting of directors is held immediately following a
meeting of the stockholders, it shall be held at the same place at which such
stockholders' meeting was held.
Section 8. REGULAR MEETINGS. Regular meetings of the board of directors
shall be held at such times and places, within or without the State of Delaware,
as the board of directors may, by resolution, from time to time determine. The
secretary shall give notice of each such resolution to any director who was not
present at the time the same was adopted, but no further notice of such regular
meeting need be given.
Section 9. SPECIAL MEETINGS. Special meetings of the board of directors
may be called by the chairman of the board, the president, any vice president or
any two members of the board of directors, and shall be held at such times
and places, within or without the State of Delaware, as may be specified in
such call.
Section 10. NOTICE OF ANNUAL OR SPECIAL MEETINGS. Notice of the time and
place of each annual or special meeting shall be given to each director by the
secretary or by the person or persons calling such meeting. Such notice need not
specify the purpose or purposes of the meeting and may be given in any manner or
method and at such time so that the director receiving it may have reasonable
opportunity to attend the meeting. Such notice shall, in all events, be deemed
to have been properly and duly given if mailed at least forty-eight hours prior
to the meeting and directed to the residence of each director as shown upon the
secretary's records. The giving of notice shall be deemed to have been waived by
any director who shall attend and participate in such meeting and may be waived,
in a writing, by any director either before or after such meeting.
Section 11. COMPENSATION. The directors, as such, shall be entitled to
receive such reasonable compensation, if any, for their services as may be fixed
from time to time by resolution of the board, and expenses of attendance, if
any, may be allowed for attendance at each annual, regular or special
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meeting of the board. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of the executive committee or of any standing or
special committee may by resolution of the board be allowed such compensation
for their services as the board may deem reasonable, and additional compensation
may be allowed to directors for special services rendered.
ARTICLE III
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Committees
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Section 1. EXECUTIVE COMMITTEE. The board of directors may from time to
time, by resolution passed by a majority of the whole board, create an executive
committee of three or more directors, the members of which shall be elected by
the board of directors to serve during the pleasure of the board. If the board
of directors does not designate a chairman of the executive committee, the
executive committee shall elect a chairman from its own number. Except as
otherwise provided herein and in the resolution creating an executive committee,
such committee shall, during the intervals between the meetings of the board of
directors, possess and may exercise all of the powers of the board of directors
in the management of the business and affairs of the Corporation, other than
that of filling vacancies among the directors or in any committee of the
directors or except as provided by law. The executive committee shall keep full
records and accounts of its proceedings and transactions. All action by the
executive committee shall be reported to the board of directors at its meeting
next succeeding such action and shall be subject to control, revision and
alteration by the board of directors, provided that no rights of third persons
shall be prejudicially affected thereby. Vacancies in the executive committee
shall be filled by the directors, and the directors may appoint one or more
directors as alternate members of the committee who may take the place of any
absent member or members at any meeting.
Section 2. MEETINGS OF EXECUTIVE COMMITTEE. Subject to the provisions of
these By-Laws, the executive committee shall fix its own rules of procedure and
shall meet as provided by such rules or by resolutions of the board of
directors, and it shall also meet at the call of the chairman of the board, the
president, the chairman of the executive committee or any two members of the
committee. Unless otherwise provided by such rules or by such resolutions, the
provisions of Section 10 of Article II relating to the notice required to be
given of meetings of the board of directors shall also apply to meetings of the
members of the executive committee. A majority of the executive committee
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shall be necessary to constitute a quorum. The executive committee may act in a
writing without a meeting, but no such action of the executive committee shall
be effective unless concurred in by all members of the committee.
Section 3. OTHER COMMITTEES. The board of directors may by resolution
provide for such other standing or special committees as it deems desirable, and
discontinue the same at its pleasure. Each such committee shall have such powers
and perform such duties, not inconsistent with law, as may be delegated to it by
the board of directors. The provisions of Section 1 and Section 2 of this
Article shall govern the appointment and action of such committees so far as
consistent, unless otherwise provided by the board of directors. Vacancies in
such committees shall be filled by the board of directors or as the board of
directors may provide.
ARTICLE IV
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Officers
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Section 1. General Provisions. The board of directors shall elect a
president, such number of vice presidents, if any, as the board may from time to
time determine, a secretary and a treasurer. The board of directors may also
elect a chairman of the board of directors and may from time to time create such
offices and appoint such other officers, subordinate officers and assistant
officers as it may determine. The chairman of the board, if one be elected,
shall be, but the other officers need not be, chosen from among the members of
the board of directors. Any two or more of such offices, other than those of
president and vice president, may be held by the same person, but no officer
shall execute, acknowledge or verify any instrument in more than one capacity.
Section 2. TERM OF OFFICE. The officers of the Corporation shall hold
office during the pleasure of the board of directors, and, unless sooner removed
by the board of directors, until the annual meeting of the board of directors
following the date of their election and until their successors are chosen and
qualified. The board of directors may remove any officer at any time, with or
without cause. Subject to the provisions of Section 6 of Article V of these
By-Laws, a vacancy in any office, however created, shall be filled by the board
of directors.
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ARTICLE V
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Duties of Officers
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Section 1. CHAIRMAN OF THE BOARD. The chairman of the board, if one be
elected, shall be the chief executive officer of the Corporation, shall preside
at all meetings of the board of directors and meetings of stockholders and shall
have such other powers and duties as may be prescribed by the board of
directors.
Section 2. PRESIDENT. The president shall be the chief operating officer
of the Corporation and shall exercise supervision over the business of the
Corporation and over its several officers, subject, however, to the control of
the board of directors. If no chairman of the board be elected, the president
shall be the chief executive officer of the Corporation. In the absence of the
chairman of the board, or if none be elected, the president shall preside at
meetings of stockholders. The president shall have authority to sign all
certificates for shares and all deeds, mortgages, bonds, agreements, notes, and
other instruments requiring his signature; and shall have all the powers and
duties prescribed by the General Corporation Law of the State of Delaware and
such others as the board of directors may from time to time assign to him.
Section 3. VICE PRESIDENTS. The vice presidents shall have such powers
and duties as may from time to time be assigned to them by the board of
directors, the chairman of the board or the president. At the request of the
president, or in the case of his absence or disability, the vice president
designated by the president (or in the absence of such designation, the vice
president designated by the board) shall perform all the duties of the president
and, when so acting, shall have all the powers of the president. The authority
of vice presidents to sign in the name of the Corporation certificates for
shares and deeds, mortgages, bonds, agreements, notes and other instruments
shall be coordinate with like authority of the president.
Section 4. SECRETARY. The secretary shall keep minutes of all the
proceedings of the stockholders and the board of directors and shall make proper
record of the same, which shall be attested by him; shall have authority to
execute and deliver certificates as to any of such proceedings and any other
records of the Corporation; shall have authority to sign all certificates for
shares and all deeds, mortgages, bonds, agreements, notes and other instruments
to be executed by the Corporation which require his signature; shall give notice
of meetings of stockholders and directors; shall produce on request at each
meeting of stockholders a certified list of stockholders arranged in
alphabetical order; shall keep such books and records as may be required by law
or by the board of directors; and, in general,
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shall perform all duties incident to the office of secretary and such other
duties as may from time to time be assigned to him by the board of directors,
the chairman of the board or the president.
Section 5. TREASURER. The treasurer shall have general supervision of
all finances; he shall have in charge all money, bills, notes, deeds, leases,
mortgages and similar property belonging to the Corporation, and shall do with
the same as may from time to time be required by the board of directors. He
shall cause to be kept adequate and correct accounts of the business
transactions of the Corporation, including accounts of its assets, liabilities,
receipts, disbursements, gains, losses, stated capital and shares, together with
such other accounts as may be required; and he shall have such other powers and
duties as may from time to time be assigned to him by the board of directors,
the chairman of the board or the president.
Section 6. ASSISTANT AND SUBORDINATE OFFICERS. Each other officer shall
perform such duties as the board of directors, the chairman of the board or the
president may prescribe. The board of directors may, from time to time,
authorize any officer to appoint and remove subordinate officers, to prescribe
their authority and duties, and to fix their compensation.
Section 7. DUTIES OF OFFICERS MAY BE DELEGATED. In the absence of any
officer of the Corporation, or for any other reason the board of directors may
deem sufficient, the board of directors may delegate, for the time being, the
powers or duties, or any of them, of such officers to any other officer or to
any director.
ARTICLE VI
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Indemnification and Insurance
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Section 1 INDEMNIFICATION IN NON-DERIVATIVE ACTIONS. The Corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Corporation) by reason of the fact that he is or was a
director or officer of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best
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interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon 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 he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. INDEMNIFICATION IN DERIVATIVE ACTIONS. The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation 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 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
or such other court shall deem proper.
Section 3. INDEMNIFICATION AS A MATTER OF RIGHT. 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 VI, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
Section 4. DETERMINATION OF CONDUCT. Any indemnification under Sections
1 and 2 of this Article VI (unless ordered by a court) shall be made by the
Corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Sections 1 and 2 of this Article VI. Such determination shall be made (1) by the
board of directors by a majority vote of a quorum consisting of directors
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who were not parties to such action, suit or proceeding, or (2) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (3) by the
stockholders.
Section 5. ADVANCE PAYMENT OF EXPENSES. Expenses incurred in defending a
civil or criminal 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 the director, officer, employee or agent to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation as authorized in this section.
Section 6. NONEXCLUSIVITY. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI shall not be
deemed exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, 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. LIABILITY INSURANCE. The Corporation shall have the power to
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 and incurred by him in any such
capacity, or arising out of his status as such, whether or not the Corporation
would have the power to indemnify him against such liability under the
provisions of this section.
Section 8. CORPORATION. For purposes of this Article VI, 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 VI with
respect to the resulting or surviving corporation as he would have with respect
to such constituent corporation if its separate existence had continued.
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Section 9. EMPLOYEE BENEFIT PLANS. For purposes of this Article VI,
references to any "other enterprise" 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 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 VI.
Section 10. CONTINUATION. The indemnification and advancement of
expenses provided by, or granted pursuant to, this Article VI 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.
ARTICLE VII
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Certificates for Shares
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Section 1. FORM AND EXECUTION. Certificates for shares, certifying the
number of full-paid shares owned, shall be issued to each stockholder in such
form as shall be approved by the board of directors. Such certificates shall be
signed by the chairman or vice-chairman of the board of directors or the
president or a vice president and by the secretary or an assistant secretary or
the treasurer or an assistant treasurer; provided, however, that the signatures
of any of such officers and the seal of the Corporation upon such certificates
may be facsimiles, engraved, stamped or printed. If any officer or officers who
shall have signed, or whose facsimile signature shall have been used, printed or
stamped on any certificate or certificates for shares, shall cease to be such
officer or officers, because of death, resignation or otherwise, before such
certificate or certificates shall have been delivered by the Corporation, such
certificate or certificates shall nevertheless be as effective in all respects
as though signed by a duly elected, qualified and authorized officer or
officers, and as though the person or persons who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been used
thereon, had not ceased to be an officer or officers of the Corporation.
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Section 2. REGISTRATION OF TRANSFER. Any certificate for shares of the
Corporation shall be transferable in person or by attorney upon the surrender
thereof to the Corporation or any transfer agent therefor (for the class of
shares represented by the certificate surrendered) properly endorsed for
transfer and accompanied by such assurances as the Corporation or such transfer
agent may require as to the genuineness and effectiveness of each necessary
endorsement.
Section 3. LOST, DESTROYED OR STOLEN CERTIFICATES. A new share
certificate or certificates may be issued in place of any certificate
theretofore issued by the Corporation which is alleged to have been lost,
destroyed or wrongfully taken upon (i) the execution and delivery to the
Corporation by the person claiming the certificate to have been lost, destroyed
or wrongfully taken of an affidavit of that fact, specifying whether or not, at
the time of such alleged loss, destruction or taking, the certificate was
endorsed, and (ii) the furnishing to the Corporation of indemnity and other
assurances, if any, satisfactory to the Corporation and to all transfer agents
and registrars of the class of shares represented by the certificate against any
and all losses, damages, costs, expenses or liabilities to which they or any of
them may be subjected by reason of the issue and delivery of such new
certificate or certificates or in respect of the original certificate.
Section 4. REGISTERED STOCKHOLDERS. A person in whose name shares are of
record on the books of the Corporation shall conclusively be deemed the
unqualified owner and holder thereof for all purposes and to have capacity to
exercise all rights of ownership. Neither the Corporation nor any transfer agent
of the Corporation shall be bound to recognize any equitable interest in or
claim to such shares on the part of any other person, whether disclosed upon
such certificate or otherwise, nor shall they be obliged to see to the execution
of any trust or obligation.
ARTICLE VIII
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Fiscal Year
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The fiscal year of the Corporation shall commence on such date in each
year as shall be designated from time to time by the board of directors. In the
absence of such designation, the fiscal year of the Corporation shall commence
on January 1 in each year.
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ARTICLE IX
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Seal
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The board of directors may provide a suitable seal containing the name
of the Corporation. If deemed advisable by the board of directors, duplicate
seals may be provided and kept for the purposes of the Corporation.
ARTICLE X
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Amendments
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These By-Laws shall be subject to alteration, amendment, repeal, or the
adoption of new By-Laws either by the affirmative vote or written consent of a
majority of the whole board of directors, or by the affirmative vote or written
consent of the holders of record of a majority of the outstanding stock of the
Corporation, present in person or represented by proxy and entitled to vote in
respect thereof, given at an annual meeting or at any special meeting at which a
quorum shall be present.
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