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Exhibit 3.2
BY-LAWS
OF
GRAHAM CORPORATION
(a Delaware Corporation)
ARTICLE 1
DEFINITIONS
As used in these By-Laws, unless the context otherwise requires, the term:
1.1 "Board" means the board of directors of the Corporation.
1.2 "By-laws" means these by-laws of the Corporation, as amended from time
to time.
1.3 "Certificate of Incorporation" means the original certificate of
incorporation of the Corporation filed on March 7, 1983 to form the Corporation,
as amended, supplemented or restated by certificates of amendment, merger or
consolidation or other certificates or instruments filed or issued under any
statute from time to time after the aforesaid date of filing of such original
certificate.
1.4 "Corporation" means GRAHAM CORPORATION.
1.5 "Directors" means the directors of the Corporation.
1.6 "Principal Office of the Corporation" means the principal office of the
Corporation located at 20 Florence Avenue, Batavia, New York 14020.
1.7 "Plurality Vote" means the greater number of votes cast for one nominee
for an office than the votes cast for any other nominee for the same office.
1.8 "Shareholders" means the shareholders of the Corporation.
ARTICLE 2
OFFICES
2.1 Principal Office. In addition to the principal office, the Corporation
may have offices and places of business at such other places, within or without
the State of Delaware, as the Board may from time to time determine.
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ARTICLE 3
SHAREHOLDERS
3.1 Place of Meetings. Every meeting of the shareholders shall be held at
the principal office of the Corporation or at such other place within or without
the State of Delaware as may be fixed from time to time, by the Board, which
place shall be specified in the notice or waiver of notice thereof.
3.2 Annual Meeting for Election of Directors. The annual meeting of
shareholders for the election of directors and the transaction of other business
shall be held on the first Wednesday in May of each year at 12 o'clock noon (or
at such other hour as may be designated in the notice of meeting), or, if the
foregoing date falls on a legal holiday, on the first business day thereafter
which is not a Saturday, Sunday or legal holiday, unless a different date and
time be fixed, from time to time, by the Board.
3.3 Special Meetings. A special meeting of shareholders unless otherwise
prescribed by statute, may be called at any time by the Chairman of the Board or
the President or in the absence or disability of the Chairman of the Board and
the President a meeting of shareholders may be called by the Secretary, and
shall be called by the Secretary on the written request of at least seventy-five
percent (75%) of the Directors, which written request shall state the purpose or
purposes of such meeting. At a special meeting of shareholders, no business
shall be transacted and no corporate action shall be taken other than that
stated in the notice of meeting.
3.4 Fixing Record Date. For the purpose of determining the shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining shareholders entitled to
receive payment of any dividend or the allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board may fix, in advance, a
date as the record date for any such determination of shareholders. Such date
shall not be more than sixty (60) nor less than ten (10) days before the date of
such meeting nor more than sixty (60) days prior to any other action. If no
record date is fixed: (i) the record date for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the day next preceding the
day on which the meeting is held; (ii) the record date for determining
stockholders entitled to express consent to corporate action in writing without
a meeting, when no prior action by the board of directors is necessary, shall be
the day on which the first written consent is expressed; and (iii) the record
date for determining shareholders for any purpose, other than those specified in
clauses (i) and (ii) hereof, shall be at the close of business on the day on
which the resolution of the Board relating thereto is adopted. When a
determination has been made of shareholders entitled to notice of or to vote at
a meeting of shareholders as herein provided, such determination shall apply to
any adjournment of such meeting, unless the Board fixes a new record date for
the adjourned meeting.
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3.5 Notice of Meetings of Shareholders. Whenever under any provision of law
or the Certificate of Incorporation or these By-Laws, shareholders are required
or permitted to take any action at a meeting, the notice of that meeting shall
state the place, date and hour of the meeting and unless it is the annual
meeting, indicate that it is being issued by or at the direction of the person
or persons calling the meeting. Notice of a special meeting shall also state the
purpose or purposes for which the meeting is called. Notice of any annual or
special meeting of shareholders shall be given, personally or by mail, not less
than ten (10) nor more than sixty (60) days before the date of such meeting to
each shareholder entitled to vote thereat. If mailed, such notices shall be
deemed to be given when deposited in the United States Mail, with postage
thereon prepaid, directed to the shareholder at his address as it appears on the
record of shareholders, or, if he shall have filed with the Secretary of the
Corporation a written request that notice to him be mailed to some other
address, then directed to him at such other address. An affidavit of the
Secretary or of the transfer agent of the Corporation that the notice required
by this section has been given shall, in the absence of fraud, be prima facie
evidence of the facts therein stated. When a meeting is adjourned to another
time or place, it shall not be necessary to give any notice of the adjourned
meeting if the time and place to which the meeting is adjourned is announced at
the meeting at which the adjournment is taken, and at the adjourned meeting any
business may be transacted that might have been transacted on the original date
of the meeting. However, if the adjournment is for more than thirty (30) days or
if, after the adjournment, the Board fixes a new record date for the adjourned
meeting, a notice of the adjourned meeting shall be given to each shareholder of
record who is entitled to vote at the meeting.
3.6 Waiver of Notice. Notice of meeting need not be given to any
shareholder who signs a waiver of notice, whether before or after the meeting.
The attendance of any shareholder at a meeting, in person or by proxy, shall
constitute a waiver of notice by him, except when the person attends the meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
3.7 List of Shareholders at Meetings. 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 stockholder and the number of shares registered in the name of each
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 also 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.
3.8 Quorum of Shareholders. Except as otherwise provided in these By-Laws
or in the Certificate of Incorporation, the holders of record of a majority of
the shares entitled to vote thereat shall constitute a quorum at a meeting of
shareholders for the transaction of any business, provided that when a specified
item of business is required to be voted on by a class or series, voting as a
class, the holders of a majority of the shares of such class or series shall
constitute a quorum for the transaction of such specified item of business. When
a quorum is once present to
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organize a meeting, it is not broken by the subsequent withdrawal of any
shareholder. The shareholders present may adjourn the meeting despite the
absence of a quorum.
3.9 Organization. At every meeting of the shareholders, the Chairman of the
Board, or an individual appointed by him, who may be, but does not have to be,
an officer of the Corporation, shall act as Chairman of the meeting. The
Secretary of the Corporation, or in his absence one of the Assistant Secretaries
of the Corporation, shall act as Secretary of the meeting.
3.10 Order of Business. The Chairman of the meeting shall conduct all
meetings of the shareholders in accordance with the best interests of the
Corporation. The order of business at all such meetings shall be as determined
by the Chairman of the meeting. The Chairman of the meeting shall have the
authority and discretion to establish reasonable procedural rules for the
conduct of the meeting, including regulation of the manner of voting and the
conduct of discussion as he or she shall deem appropriate. The Chairman of the
meeting shall also have the authority to adjourn the meeting from time to time
and place to place as he or she may deem necessary and in the best interests of
the Corporation.
3.11 Inspectors of Election. The Board, in advance of any shareholders'
meeting, may appoint one or more inspectors to act at the meeting or any
adjournment thereof. If inspectors are not so appointed, the person presiding at
a shareholders' meeting may, and on the request of any shareholder entitled to
vote thereat shall, appoint inspectors. If appointed on the request of one or
more shareholders, the holders of a majority of shares present and entitled to
vote thereat shall determine the number of inspectors to be appointed. In case
any person appointed fails to appear or act, the vacancy may be filled by
appointment made by the Board in advance of the meeting or at the meeting by the
person presiding thereat. Each inspector, before entering upon the discharge of
his duties shall take and sign an oath faithfully to execute the duties of
inspector at such meeting with strict impartiality and according to the best of
his ability. The inspectors shall determine the number of shares outstanding,
the number of shares represented at the meeting, the existence of a quorum, the
validity and effect of proxies, and shall receive votes, ballots or consents,
hear and determine all challenges and questions arising in connection with the
right to vote, count and tabulate all votes, ballots or consents, determine the
result, and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. On request of the person presiding at the meeting
or any shareholder entitled to vote thereat, the inspectors shall make a report
in writing of any challenge, question or matter determined by them and execute a
certificate of any fact found by them. Any report or certificate made by them
shall be prima facie evidence of the facts stated and of the vote as certified
by them.
3.12 Voting; Proxies. Each shareholder entitled to vote at any meeting may
vote either in person or by proxy. Unless otherwise specified in the Certificate
of Incorporation or in a resolution, or resolutions, of the Board providing for
the issuance of preferred stock, each shareholder entitled to vote shall be
entitled to one vote for each share of capital stock registered in his or her
name on the transfer books or records of the Corporation. Each shareholder
entitled to vote may authorize another person or persons to act for him or her
by proxy. All proxies shall be in writing, signed by the shareholder or by his
or her duly authorized attorney-in-fact, and shall be filed with the Secretary
before being voted. No proxy shall be valid after three (3) years
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from the date of its execution unless otherwise provided in the proxy. The
attendance at any meeting by a shareholder who shall have previously given a
proxy applicable thereto shall not, as such, have the effect of revoking the
proxy. The Corporation may treat any duly executed proxy as not revoked and in
full force and effect until it receives a duly executed instrument revoking it,
or a duly executed proxy bearing a later date. If ownership of a share of voting
stock of the Corporation stands in the name of two or more persons, in the
absence of written directions to the Corporation to the contrary, any one or
more of such shareholders may cast all votes to which such ownership is
entitled. If an attempt is made to cast conflicting votes by the several persons
in whose names shares of stock stand, the vote or votes to which those persons
are entitled shall be cast as directed by a majority of those holding such stock
and present at such meeting. If such conflicting votes are evenly split on any
particular matter, each faction may vote the securities in question
proportionally, or any person voting the shares, or a beneficiary, if any, may
apply to the Court of Chancery or such other court as may have jurisdiction to
appoint an additional person to act with the persons so voting the shares, which
shall then be voted as determined by a majority of such persons and the person
appointed by the Court. Except for the election of directors or as otherwise
provided by law, the Certificate of Incorporation or these Bylaws, at all
meetings of shareholders, all matters shall be determined by a vote of the
holders of a majority of the number of votes eligible to be cast by the holders
of the outstanding shares of capital stock of the Corporation present and
entitled to vote thereat. Directors shall, except as otherwise required by law,
these Bylaws or the Certificate of Incorporation, be elected by a plurality of
the votes cas by each class of shares entitled to vote at a meeting of
shareholders, present and entitled to vote in the election.
3.13 Written Consent of Shareholders. Any action required to be taken at
any annual or special meeting of shareholders of the corporation, or any action
which may be taken at any annual or special meeting of such shareholders, may be
taken without a meeting, without prior notice and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would be
necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted. Prompt notice of the taking of
the corporate action without a meeting by less than unanimous written consent
shall be given to those shareholders who have not consented in writing.
3.14 Procedure for Nominations. Subject to the provisions hereof, the
Nominating Committee of the Board shall select nominees for election as
directors. Except in the case of a nominee substituted as a result of the death,
incapacity, withdrawal or other inability to serve of a nominee, the Nominating
Committee shall deliver written nominations to the Secretary at least sixty (60)
days prior to the date of the annual meeting. Provided the Nominating Committee
makes such nominations, no nominations for directors except those made by the
Nominating Committee shall be voted upon at the annual meeting of shareholders
unless other nominations by shareholders are made in accordance with the
provisions of this Section 3.14. Nominations of individuals for election to the
Board at an annual meeting of shareholders may be made by any shareholder of
record of the Corporation entitled to vote for the election of directors at such
meeting who provides timely notice in writing to the Secretary as set forth in
this Section 3.14. To be timely, a shareholder's notice must be delivered to or
received by the Secretary not later
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than the following dates: (i) with respect to an election of directors to be
held at an annual meeting of shareholders, sixty (60) days in advance of such
meeting if such meeting is to be held on a day which is within thirty (30) days
preceding the anniversary of the previous year's annual meeting, or ninety (90)
days in advance of such meeting if such meeting is to be held on or after the
anniversary of the previous year's annual meeting; and (ii) with respect to an
election to be held at an annual meeting of shareholders held at a time other
than within the time periods set forth in the immediately preceding clause (i),
or at a special meeting of shareholders for the election of directors, the close
of business on the tenth (10th) day following the date on which notice of such
meeting is first given to shareholders. For purposes of this Section 3.14,
notice shall be deemed to first be given to shareholders when disclosure of such
date of the meeting of shareholders is first made in a press release reported to
Dow Jones News Services, Associated Press or comparable national news service,
or in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended. Such shareholder's notice shall set forth (a)
as to each person whom the shareholder proposes to nominate for election or
re-election as a director, (i) the name, age, business address and residence
address of such person, (ii) the principal occupation or employment of such
person, (iii) such person's written consent to serve as a director, if elected,
and (iv) such other information regarding each nominee proposed by such
shareholder as would be required to be included in a proxy statement filed
pursuant to the proxy rules of the Securities and Exchange Commission (whether
or not the Corporation is then subject to such rules); and (b) as to the
shareholder giving the notice (i) the name and address of such shareholder as
they appear on the books and records of the Corporation, (ii) the class and
number of shares of the Corporation which are owned of record by such
shareholder and the dates upon which he or she acquired such shares, (iii) a
description of all arrangements or understandings between the shareholder and
nominee and any other person or persons (naming such person or persons) pursuant
to which the nominations are to be made by the shareholder, and (iv) the
identification of any person employed, retained, or to be compensated by the
shareholder submitting the nomination or by the person nominated, or any person
acting on his or her behalf to make solicitations or recommendations to
shareholders for the purpose of assisting in the election of such director, and
a brief description of the terms of such employment, retainer or arrangement for
compensation. At the request of the Board, any person nominated by the
Nominating Committee for election as a director shall furnish to the Secretary
that information required to be set forth in a shareholder's notice of
nomination which pertains to the nominee together with the required written
consent. No person shall be elected as a director of the Corporation unless
nominated in accordance with the procedures set forth in this Section 3.14.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that a nomination was not properly brought before the
meeting in accordance with the provisions hereof and, if he should so determine,
he shall declare to the meeting that such nomination was not properly brought
before the meeting and shall not be considered.
3.15 Substitution of Nominees. In the event that a person is validly
designated as a nominee in accordance with Section 3.14 of this Article III and
shall thereafter become unwilling or unable to stand for election to the Board,
the Nominating Committee may designate a substitute nominee upon delivery, not
fewer than five (5) days prior to the date of the meeting for
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the election of such nominee, of a written notice to the Secretary setting forth
such information regarding such substitute nominee as would have been required
to be delivered to the Secretary pursuant to Section 3.14 of this Article III
had such substitute nominee been initially proposed as a nominee. Such notice
shall include a signed consent to serve as a director of the Corporation, if
elected, of each such substituted nominee.
3.16 New Business. Any new business to be taken up at the annual meeting at
the request of the Chairman of the Board, the President or by resolution of at
least three-fourths of the entire Board shall be stated in writing and filed
with the Secretary at least fifteen (15) days before the date of the annual
meeting, and all business so stated, proposed and filed shall be considered at
the annual meeting, but, except as provided in this Section 3.16, no other
proposal shall be acted upon at the annual meeting. Any proposal offered by any
shareholder may be made at the annual meeting and the same may be discussed and
considered, but unless properly brought before the meeting such proposal shall
not be acted upon at the meeting. For a proposal to be properly brought before
an annual meeting by a shareholder, the shareholder must be a shareholder of
record and have given timely notice thereof in writing to the Secretary. To be
timely, a shareholder's notice must be delivered to or received by the Secretary
not later than the following dates: (i) with respect to an annual meeting of
shareholders, sixty (60) days in advance of such meeting if such meeting is to
be held on a day which is within thirty (30) days preceding the anniversary of
the previous year's annual meeting, or ninety (90) days in advance of such
meeting if such meeting is to be held on or after the anniversary of the
previous year's annual meeting; and (ii) with respect to an annual meeting of
shareholders held at a time other than within the time periods set forth in the
immediately preceding clause (i), the close of business on the tenth (10th) day
following the date on which notice of such meeting is first given to
shareholders. For purposes of this Section 3.16, notice shall be deemed to first
be given to shareholders when disclosure of such date of the meeting of
shareholders is first made in a press release reported to Dow Jones News
Services, Associated Press or comparable national news service, or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as
amended. A shareholder's notice to the Secretary shall set forth as to the
matter the shareholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting; (b)
the name and address of the shareholder proposing such business as they appear
on the books and records of the Corporation; (c) the class and number of shares
of the Corporation which are owned of record by the shareholder and the dates
upon which he or she acquired such shares; (d) the identification of any person
employed, retained, or to be compensated by the shareholder submitting the
proposal, or any person acting on his or her behalf, to make solicitations or
recommendations to shareholders for the purpose of assisting in the passage of
such proposal, and a brief description of the terms of such employment, retainer
or arrangement for compensation; (e) any material interest of the shareholder in
the business proposed; and (f) such other information regarding such proposal as
would be required to be included in a proxy statement filed pursuant to the
proxy rules of the Securities and Exchange Commission or required to be
delivered to the Corporation pursuant to the proxy rules of the Securities and
Exchange Commission (whether or not the Corporation is then subject to such
rules). This provision shall not prevent the consideration and approval or
disapproval at an annual meeting of reports of officers, directors and
committees of the Board or the management
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of the Corporation, but in connection with such reports, no new business shall
be acted upon at such annual meeting unless stated and filed as herein provided.
This provision shall not constitute a waiver of any right of the Corporation
under the proxy rules of the Securities and Exchange Commission or any other
rule or regulation to omit a shareholder's proposal from the Corporation's proxy
materials.
The Chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that any new business was not properly brought before the
meeting in accordance with the provisions hereof and, if he should so determine,
he shall declare to the meeting that such new business was not properly brought
before the meeting and shall not be considered.
ARTICLE 4
DIRECTORS
4.1 General Powers. The business and affairs of the Corporation shall be
managed by or under the direction of its Board. The Board may adopt such rules
and regulations, not inconsistent with applicable laws or the Certificate of
Incorporation or these By-Laws as it may deem proper for the conduct of its
meetings and the management of the Corporation.
4.2 Number; Qualification; Terms of Office. The number of directors
constituting the entire Board shall not be less than three (3) nor more than
twelve (12). Within said limits the number of directors shall be fixed from time
to time by resolution adopted by a majority of the entire Board of Directors.
Each director shall be at least 21 years of age.
Except as otherwise provided by law or by these By-Laws the directors shall
be elected at the annual meeting of the shareholders in each year. The directors
shall be divided into three classes, as nearly equal in number as possible, with
the term of office of one class expiring each year; i.e., as to the
Corporation's First Board of Directors; at the 1983 annual meeting of
shareholders, for directors of the first class; at the 1984 annual meeting, for
directors of the second class; and at the 1985 annual meeting, for directors of
the third class.
At each annual meeting of the shareholders successors to the directors
whose terms shall then expire shall be elected to hold office for a term
expiring at the third succeeding annual meeting of shareholders.
The foregoing notwithstanding, each director shall serve until his
successor has been elected and qualified, or until his earlier resignation,
disqualification or removal.
4.3 Election. Directors shall, except as otherwise provided by applicable
laws, be elected at the annual meeting of shareholders by a plurality vote of
the holders of shares entitled to vote in the election.
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4.4 Organization. Meetings of the Board shall be presided over by the
Chairman of the Board or such other director or officer as the Chairman of the
Board shall designate, and in the absence or incapacity of the Chairman of the
Board, the presiding officer shall be the then senior member of the Board in
terms of length of service on the Board (which length of service shall include
length of service on the Board of Directors of Graham Manufacturing Co., Inc.
and any predecessors thereto). The Secretary or, in his absence, a person
appointed by the Chairman of the Board (or other presiding person), shall act as
secretary of the meeting. The Chairman of the Board (or other person presiding)
shall conduct all meetings of the Board in accordance with the best interests of
the Corporation and shall have the authority and discretion to establish
reasonable procedural rules for the conduct of Board meetings. At the discretion
of the Chairman of the Board, any one or more directors may participate in a
meeting of the Board or a committee of the Board by means of a conference
telephone or similar communications equipment allowing all persons participating
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at any such meeting.
4.5 Place of Meeting, etc. The Board may hold its meetings within or
without the State of Delaware at such places as the Board may from time to time
by resolution determine or (unless contrary to resolution of the Board) at such
place as shall be specified in the notice of the meeting.
4.6 Annual Meeting. After each annual election of directors, the Board may
meet, without notice of such meeting, for the purposes of election of officers,
and the transaction of other business, on the day when and at the place where
such annual election is held, and as soon as practicable after such annual
election. Such annual meeting may be held at any other time and place specified
in a notice given as hereinafter provided for special meetings of the Board or
in a consent and waiver of notice thereof.
4.7 Regular Meetings. Regular meetings of the Board may be held at such
times and places as may be fixed from time to time by the Board; and, unless
required by the Board, notice of any such meeting need not be given. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting, which would otherwise be held on that
day, shall be held at the same hour at such place on the next succeeding
business day which is not a Saturday or Sunday.
4.8 Special Meetings. Special meetings of the Board may be called for any
purpose at any time by or at the request of the Chairman of the Board or the
President. Special meetings of the Board shall also be called by the Secretary
upon the written request, stating the purpose or purposes of the meeting, of at
least seventy-five percent (75%) of the directors then in office. The persons
authorized to call special meetings of the Board shall give notice of such
meetings in the manner prescribed by these Bylaws and may fix any place, within
or without the Corporation's regular business area, as the place for holding any
special meeting of the Board called by such persons. No business shall be
conducted at a special meeting other than that specified in the notice of
meeting.
4.9 Waivers of Notice of Meetings. Except as otherwise provided in this
Article IV, at
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least twenty-four (24) hours notice of meetings shall be given to each director
if given in person or by telephone, telegraph, telex, facsimile or other
electronic transmission and at least five (5) days notice of meetings shall be
given if given in writing and delivered by courier or by postage prepaid mail.
The purpose of any special meeting shall be stated in the notice. Such notice
shall be deemed given when sent or given to any mail or courier service or
company providing electronic transmission service. Any director may waive notice
of any meeting by submitting a signed waiver of notice with the Secretary,
whether before or after the meeting. The attendance of a director at a meeting
shall constitute a waiver of notice of such meeting, except where a director
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully
called or convened.
4.10 Telephonic Meetings. Any one or more members of the Board or any
Committee thereof may participate in a meeting of the Board or such Committee by
means of conference telephone or similar communication equipment allowing all
persons participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at such meeting.
4.11 Quorum and Manner of Acting. A majority of the members of the Board
then in office shall constitute a quorum for the transaction of business and the
vote of a majority of the directors present at the time of the vote, if a quorum
is present at such time, shall be the act of the Board in all transactions,
except those in which a greater vote is required by law, by the Certificate of
Incorporation, or by the By-laws, and in such transactions the vote of such
greater number of directors shall be the act of the Board. ln the absence of a
quorum a majority of the directors present may adjourn any meeting from time to
time, without notice other than announcement at the meeting, until a quorum is
present.
4.12 Resignations. Any directors of the Corporation may resign at any time
by written notification addressed to the President or the Secretary of the
Corporation. Such resignation shall take effect upon receipt, and, unless
otherwise specified, the acceptance of such resignation shall not be necessary
to make it effective.
4.13 Removal of Directors. Any or all of the directors may be removed at
any time but only for cause by the shareholders at any meeting of shareholders,
called for the purpose, by the affirmative vote of 75% of the shares of the
Corporation entitled to vote and, if a corporation, person or other entity owns
more than 50% of the shares of the Corporation entitled to vote, by the
affirmative vote of the holders of a majority of the shares of the Corporation
entitled to vote and not owned by the majority shareholder.
4.14 Vacancies. To the extent not inconsistent with the Certificate of
Incorporation and subject to the limitations prescribed by law and the rights of
holders of Preferred Stock, vacancies in the office of director, including
vacancies created by newly created directorships resulting from an increase in
the number of directors, shall be filled only by a vote of a majority of the
directors then holding office, whether or not a quorum, at any regular or
special meeting of the Board called for that purpose. Subject to the rights of
holders of Preferred Stock, no person shall be so elected a director unless
nominated by the Nominating Committee. Subject to the
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rights of holders of Preferred Stock, any director so elected shall serve for
the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until his or her successor
shall be elected and qualified.
4.15 Compensation. Each director, in consideration of his serving as such,
shall be entitled to receive from the Corporation such reasonable amount per
annum or such reasonable fees for attendance at directors' meetings, or both, as
the Board shall from time to time determine, together with reimbursement for the
reasonable expenses incurred by him in connection with the performance of his
duties. Each director who shall serve as a member of the Executive Committee, if
any, or any other committee of the Board, in consideration of his serving as
such, shall be entitled to such additional amount per annum or such fees for
attendance at committee meetings, or both, as the Board shall from time to time
determine. Nothing in this section contained shall preclude any director from
serving the Corporation or its subsidiaries in any other capacity and receiving
proper compensation therefor.
4.16 Board Action Without a Meeting. Whenever any action is required or
permitted to be taken by the Board or any committee thereof, such action may be
taken without a meeting if all members of the Board or the committee consent in
writing to the adopting of a resolution authorizing the action and the
resolution and the written consents thereto by the members of the Board or
committee are filed with the minutes of the proceedings of the Board or
committee.
ARTICLE 5
COMMITTEES
5.1 How Constituted and Powers. By resolution adopted by a majority of the
entire Board, the directors may designate from their number three or more
directors to constitute an Executive Committee and other committees other than
the Nominating Committee, each of which, to the extent provided in the
resolution designating it, shall have the authority of the Board of Directors
with the exception of any authority the delegation of which is prohibited by
law.
5.2 Nominating Committee. By resolution adopted by at least seventy-five
percent (75%) of the entire Board, the directors shall designate from their
number at least three (3) but no more than four (4) directors, to constitute a
Nominating Committee. No member of the Nominating Committee shall vote on his or
her own nomination. The Nominating Committee shall review qualifications of and
interview candidates for the Board and shall make nominations for election of
board members in accordance with the provisions of these Bylaws. A quorum shall
consist of at least one-third of the members of the Committee, and in no event
less than two (2) members of the Committee. The Board may remove a member of the
Nominating Committee from the Committee, with or without cause, only by a vote
of at least seventy-five per cent (75%) of the entire Board at any regular or
special meeting of the Board called for that purpose, provided that no
ex-officio member of the Committee may be removed from the Committee as long as
such member remains a director of the Corporation.
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ARTICLE 6
OFFICERS
6.1 Officers. The Board shall, as soon as practicable after the annual
meeting of shareholders in each year elect a Chairman of the Board, a President,
a Treasurer and a Secretary, each to have such functions or duties as are
provided in these By-laws or as the Board may from time to time determine and
each to hold office for the term for which he is elected and until his successor
shall have been duly chosen and shall qualify, or until his death, or until he
shall resign or shall have been removed in the manner hereinafter provided. No
officer need be a director. The Board may, from time to time, appoint other
officers or assistant officers, each of whom shall hold office for such period,
have such authority, and perform such duties as are provided in these By-laws or
as the Board may from time to time determine. Any two or more offices may be
held by the same person, except the offices of President and Secretary.
6.2 Removal of Officers. Except for the Chairman of the Board, the Chief
Executive Officer or the President, any officer may be removed at any regular
meeting of the Board with or without cause by an affirmative vote of a majority
of the entire Board. The Board may remove the Chairman of the Board, the Chief
Executive Officer or the President at any time, with or without cause, only by a
vote of seventy-five percent (75%) of the non-officer directors then holding
office at any regular or special meeting of the Board called for that purpose.
Removal of an officer, however effected, shall be without prejudice to his
contract rights, if any. Appointment or election of an officer shall not of
itself create contract rights.
6.3 Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or any other cause may be filled for the unexpired
portion of the term by the Board at any regular or special meeting provided
notice of such intent is given.
6.4 Compensation. Salaries or other compensation of the officers may be
fixed from time to time by the Board. No officer shall be prevented from
receiving a salary or other compensation by reason of the fact that he is also a
director of the Corporation.
6.5 Chairman of the Board. The Chairman of the Board shall preside at all
meetings of the shareholders and at all meetings of the Board and shall have
such other powers and duties as may from time to time be assigned to him by the
Board.
6.6 President. The President shall have general supervision over the
business of the Corporation, subject, however, to the control of the Board and
of any duly authorized committee of directors. He may, with the Treasurer or the
Secretary or an Assistant Treasurer or an Assistant Secretary, sign certificates
for shares of the Corporation. He may sign and execute in the name of the
Corporation deeds, mortgages, bonds, contracts and other instruments, except in
cases where the signing and execution thereof shall be expressly delegated by
the Board or by any duly authorized committee of directors or by these By-laws
to some other officer or agent of the Corporation, or shall be required by law
otherwise to be signed or executed, and, in general,
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he shall perform all duties incident to the office of President and such other
duties as from time to time may be assigned to him by the Board or by any duly
authorized committee of directors. The President shall hire, appoint, discharge
and fix the compensation of all employees, agents and representatives of the
Corporation, other than the duly elected or appointed officers, subject to the
general supervision of the Board.
6.7 Vice Presidents. At the request of the President, or in his absence or
disability, at the request of the Board, the Vice Presidents in the order
determined by the Board shall perform all the duties of the President and so
acting shall have all the powers of and be subject to all the restrictions upon
the President. Any Vice President may also, with the Treasurer or the Secretary
or an Assistant Treasurer or an Assistant Secretary, sign certificates for
shares of the Corporation; may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts or other instruments authorized by the Board
or by any duly authorized committee of directors, except in cases where the
signing and execution thereof shall be expressly delegated by the Board or by
any duly authorized committee of directors or by these By-laws to some other
officer or agent of the Corporation, or shall be required by law otherwise to be
signed or executed; and shall perform such other duties as from time to time may
be assigned to him by the Board or by any duly authorized committee of directors
or by the President.
6.8 Treasurer. The Treasurer shall, if required, by the Board, give a bond
for the faithful discharge of his duties, in such sum and with such sureties as
the Board shall determine. He shall have charge and custody of, and be
responsible for, all funds, securities and notes of the Corporation; receive and
give receipts for moneys due and payable to the Corporation from any sources
whatsoever; deposit all such moneys in the name of the Corporation in such
banks, trust companies or other depositaries as shall be selected in accordance
with these By-laws; against proper vouchers cause such funds to be disbursed by
checks or drafts on the authorized depositaries of the Corporation signed in
such manner as shall be determined in accordance with any provision of these
By-laws, and be responsible for the accuracy of the amounts of all money so
disbursed; regularly enter or cause to be entered in books to be kept by him or
under his direction full and adequate account of all moneys received or paid by
him for the account of the Corporation; have the right to require, from time to
time, reports or statements giving such information as he may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; render to the President, the Board or
any duly authorized committee of directors, whenever the President, the Board or
any duly authorized committee of directors, respectively, shall require him so
to do, an account of the financial condition of the Corporation and of all his
transactions as Treasurer; exhibit at all reasonable times his books of account
and other records to any of the directors of the Corporation, upon application
at the office of the Corporation where such books and records are kept; and in
general, perform all the duties incident to the office of Treasurer and such
other duties as from time to time may be assigned to him by the Board or by any
duly authorized committee of directors or by the President; and he may sign with
the President or a Vice President certificates for stock of the Corporation.
6.9 The Secretary. The Secretary shall have the duty to record the
proceedings of the meetings of the shareholders and directors in a book to be
kept for that purpose; he shall see that
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all notices required to be given by the Corporation are duly given and served;
he may, with the President or any of the Vice Presidents, sign certificates for
shares of the Corporation; he shall be custodian of the seal of the Corporation
and shall affix the seal or cause it to be affixed to all certificates for
shares of the Corporation and to all documents the execution of which on behalf
of the Corporation under its corporate seal is duly authorized in accordance
with the provisions of these By-laws; he shall have charge of the stock ledger
and also of the other books, records and papers of the Corporation relating to
its organization and management as a Corporation, and shall see that the
reports, statements and other documents required by law are properly kept and
filed; and shall, in general, perform all the duties incident to the office of
Secretary and such other duties as from time to time may be assigned to him by
the Board or by any duly authorized committee of directors or by the President.
6.10 Assistant Treasurers and Assistant Secretaries. The Assistant
Treasurers shall, respectively, if required by the Board, give bonds for the
faithful discharge of their duties in such sums and with such sureties as the
Board shall require. Assistant Treasurers and Assistant Secretaries shall
perform such duties as shall be assigned to each of them by the Treasurer and by
the Secretary, respectively, or by the Board or by any duly authorized committee
of directors or by the President. Assistant Treasurers and Assistant Secretaries
may, with the President or a Vice President, sign certificates for stock of the
Corporation.
ARTICLE 7
CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
7.1 Checks, Drafts, Etc. All checks, drafts and other orders for the
payment of money out of the funds of the Corporation and all notes or other
evidences of indebtedness of the Corporation shall be signed on behalf of the
Corporation in such manner as shall from time to time be determined by
resolution of the Board or of any duly authorized committee of directors.
7.2 Deposits. The funds of the Corporation not otherwise employed shall be
deposited from time to time to the order of the Corporation in such banks, trust
companies or other depositaries as the Board or any duly authorized committee of
directors may select or as may be selected by an officer or officers, agent or
agents, of the Corporation to whom such power may from time to time be delegated
by the Board or any duly authorized committee of directors.
ARTICLE 8
STOCK AND DIVIDENDS
8.1 Transfer Agent and Registrar. The Board shall have the power to appoint
one or more Transfer Agents and Registrars for the transfer and registration of
certificates of stock of any class, and may require that stock certificates be
countersigned and registered by one or more
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of such Transfer Agents and Registrars.
8.2 Registration and Transfer of Shares. Subject to the provisions of the
Certificate of Incorporation of the Corporation, the name of each person owning
a share of the capital stock of the Corporation shall be entered on the books of
the Corporation together with the number of shares held by him or her, the
numbers of the certificates covering such shares and the dates of issue of such
certificates. Subject to the provisions of the Certificate of Incorporation of
the Corporation, the shares of stock of the Corporation shall be transferable on
the books of the Corporation by the holders thereof in person, or by their duly
authorized attorneys or legal representatives, on surrender and cancellation of
certificates for a like number of shares, accompanied by an assignment or power
of transfer endorsed thereon or attached thereto, duly executed, with such
guarantee or proof of the authenticity of the signature as the Corporation or
its agents may reasonably require and with proper evidence of payment of any
applicable transfer taxes. Subject to the provisions of the Certificate of
Incorporation of the Corporation, a record shall be made of each transfer.
8.3 Lost, Destroyed, Stolen and Mutilated Certificates. The Board may
direct that a new certificate be issued in place of any certificate theretofore
issued claimed to have been lost or destroyed, provided it has received proof
satisfactory to it by affidavit or otherwise of the facts surrounding the loss
or destruction of the certificate and the ownership thereof at the time of such
loss or destruction. As a condition precedent to the issuance of a new
certificate, the Board may also require the alleged owner to advertise the fact
of the loss or destruction in a newspaper chosen by the Board and/or furnish to
the Corporation a surety bond in form and amount satisfactory to it indemnifying
the Corporation and its directors and officers from all claims and expenses with
respect to the certificate claimed to have been lost or destroyed and the
duplicate certificate issued in place thereof.
8.4 Dividends, Surplus, Etc. Subject to the provisions of the Certificate
of Incorporation and the law of the State of Delaware, the Board (i) may declare
dividends on the shares of the Corporation in such amounts as, in its opinion,
the condition of the affairs of the Corporation shall render advisable, (ii) may
use and apply, in its discretion, any of the surplus of the Corporation or the
net profits arising from its business in purchasing or acquiring any of the
shares of stock of the Corporation or of purchase warrants therefor in
accordance with law, or any of its bonds, debentures, notes, scrip or other
securities or evidences of indebtedness, and (iii) may set aside from time to
time out of such surplus or net profits such sum or sums as it in its absolute
discretion may think proper, as a reserve fund to meet contingencies, or
equalizing dividends, or for the purpose of maintaining or increasing the
property or business of the Corporation, or for any other purpose it may think
conducive to the best interest of the Corporation.
8.5 Holder of Record. Subject to the provisions of the Certificate of
Incorporation of the Corporation, the Corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder thereof in fact
and shall not be bound to recognize any equitable or other claim to or interest
in such shares on the part of any other person, whether or not it shall
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have express or other notice thereof, except as otherwise expressly provided by
law.
ARTICLE 9
FORM OF RECORDS
Any records maintained by the Corporation in the regular course of its
business, including its stock ledger, books of account, and minute books, may be
kept on, or be in the form of, punch cards, magnetic tape, photographs,
micro-photographs, or any other information storage device, provided that the
records so kept can be converted into clearly legible written form within a
reasonable time. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect the same.
ARTICLE 10
SEAL
The Board shall provide a corporate seal which shall be in the form of a
circle and shall bear the full name of the Corporation and the year of its
incorporation, 1983.
ARTICLE 11
FISCAL YEAR
The Fiscal Year of the Corporation shall be the calendar year unless
otherwise determined by the Board of Directors.
ARTICLE 12
VOTING OF STOCK HELD
Unless otherwise provided by resolution of the Board, the President may,
from time to time, appoint an attorney or attorneys or agent or agents of this
Corporation, including himself, in the name and on behalf of the Corporation to
cast the votes which the Corporation may be entitled to cast as a stockholder or
otherwise in any other corporation, any of whose stock or securities may be held
by the Corporation, at meetings of the holders of the stock or other securities
of such other corporation, or to consent in writing to any action by any such
other corporation, and may instruct the person or persons so appointed as to the
manner of casting such votes or giving such consent, and may execute or cause to
be executed on behalf of the Corporation and under its corporate seal, or
otherwise, such written proxies, consents, waivers or other instruments as he
may deem necessary or proper in the premises; or the President may
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himself attend any meeting of the holders of stock or other securities of any
such other corporation and thereat vote or exercise any or all other powers of
the Corporation as the holder of such stock or other securities of such other
corporation.
ARTICLE 13
AMENDMENT
Except as otherwise provided by law or under the Corporation's Certificate
of Incorporation, the By-laws of the Corporation may not be amended except (a)
by resolution adopted by vote of seventy-five percent of the entire Board of
Directors, (b) by the shareholders voting upon a proposal recommended by the
affirmative vote of 75% of the entire Board of Directors, or (c) by the
affirmative vote of (i) the holders of 75% of the shares of the Corporation
entitled to vote and (ii) if any corporation, person, or other entity owns more
than 50% of the shares of the Corporation entitled to vote, the holders of a
majority of the shares of the Corporation entitled to vote and not owned by the
majority shareholder. Any amendment made by the Board of Directors and any
proposed amendment adopted by the Board of Directors for recommendation to the
Shareholders shall be adopted at a regular meeting and may be adopted only if
(a) a notice specifying the change or amendment shall have been given at a
previous regular meeting and entered in the minutes of the Board; (b) a written
statement describing the change or amendment shall be made in a notice mailed to
the directors of the meeting at which the change or amendment shall be acted
upon. Notwithstanding the foregoing, any provision of these Bylaws that contains
a supermajority voting requirement shall only be altered, amended, rescinded, or
repealed by the Board by a vote not less than the supermajority specified in
such provision.