Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
CALGON CARBON CORPORATION
A Delaware Corporation
(as amended and restated through January 27, 2005)
INDEX
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BY-LAWS
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ARTICLE Page
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I. STOCKHOLDERS
1.01 Annual Meetings...............................................1
1.02 Special Meetings..............................................1
1.03 Notice of Annual and Special Meetings.........................1
1.04 Quorum........................................................1
1.05 Voting........................................................2
1.06 Procedure at Stockholder's Meetings...........................2
1.07 Action Without Meeting........................................2
1.08 Notice of Stockholder Business and Nominations................3
II. DIRECTORS
2.01 Number, Election and Term of Office...........................6
2.02 Annual Meetings...............................................6
2.03 Regular Meetings..............................................6
2.04 Special Meetings..............................................6
2.05 Notice of Annual and Special Meetings.........................7
2.06 Quorum and Manner of Acting...................................7
2.07 Action Without Meeting........................................7
2.08 Participation by Conference Telephone.........................8
2.09 Resignations..................................................8
2.10 Removal of Directors..........................................8
2.11 Vacancies.....................................................8
2.12 Compensation of Directors.....................................8
2.13 Committees....................................................6
III. OFFICERS AND EMPLOYEES
3.01 Executive Officers............................................9
3.02 Additional Officers; Other Agents and Employees...............9
3.03 The Chairman..................................................9
3.04 The President.................................................9
3.05 The Vice Presidents..........................................10
3.06 The Secretary and Assistant Secretaries......................10
3.07 The Treasurer and Assistant Treasurers.......................10
3.08 Vacancies....................................................11
3.09 Delegation of Duties.........................................11
IV. SHARES OF CAPITAL STOCK
4.01 Share Certificates...........................................11
4.02 Transfer of Shares...........................................11
4.03 Transfer Agents and Registrars...............................11
4.04 Lost, Stolen, Destroyed or Mutilated Certificates............12
4.05 Regulations Relating to Shares...............................12
4.06 Holders of Record............................................12
4.07 Fixing of Record Date........................................12
V. LOANS, NOTES, CHECKS, CONTRACTS AND OTHER INSTRUMENTS
5.01 Notes, Checks, etc...........................................13
5.02 Execution of Instruments Generally...........................13
5.03 Proxies in Respect of Stock or
Other Securities of Other Corporations.....................13
VI. GENERAL PROVISIONS
6.01 Offices....................................................14
6.02 Corporate Seal.............................................14
6.03 Fiscal Year................................................14
VII. VALIDATION OF CERTAIN CONTRACTS
7.01 ...........................................................14
VIII. INDEMNIFICATION OF DIRECTORS AND OFFICERS
8.01 Indemnification............................................15
8.02 Payment of Indemnification.................................15
8.03 Exclusivity................................................15
IX. AMENDMENTS
9.01 ...........................................................16
BY-LAWS
Of
CALGON CARBON CORPORATION
ARTICLE I
STOCKHOLDERS
Section 1.01 Annual Meetings. Annual meetings of the stockholders
shall be held at such place, either within or without the State of Delaware,
and at such time and date as the Board of Directors shall determine and as set
forth in the notice of the meeting.
Section 1.02 Special Meetings. Special meetings of the
stockholders may be called at any time, for the purpose or purposes set forth
in the call, by the President or the Board of Directors by delivering a
written request to the Secretary. At any time, upon the written request of any
person or person who have duly called a special meeting, it shall be the duty
of the Secretary to fix the date of the meeting, to be held not more than 75
days after receipt of the request, and to give due notice thereof. Special
meetings shall be held at such place, either within or without the State of
Delaware, and at such time and date as the Board of Directors shall determine
and as set forth in the notice of the meeting.
Section 1.03 Notice of Annual and Special Meetings. Except as
otherwise expressly required by law, notice of each meeting of stockholders,
whether annual or special, shall be given by or at the direction of the Board
of Directors at least 10 or not more than 60 days prior to the date on which
the meeting is to be held to each stockholder of record entitled to vote
thereat by delivery of a notice thereof to him personally or by sending a copy
thereof through the mail or by overnight courier, charges prepaid, to his
address appearing on the records of the Corporation or by electronic
transmission, as and to the extent permitted by applicable law. Each such
notice shall specify the place, day and hour of the meeting and, in the case
of a special meeting, shall briefly state the purpose or purposes for which
the meeting is called. A written waiver of notice, signed by the person or
persons entitled to such notice, whether before or after the date and time
fixed for the meeting shall be deemed the equivalent of such notice. Neither
the business to be transacted at nor the purpose of the meeting need be
specified in a waiver of notice of such meeting.
Section 1.04 Quorum. A stockholders' meeting duly called shall
not be organized for the transaction of business unless a quorum is present.
At any meeting the presence in person or by proxy of stockholders entitled to
cast at least a majority of the votes which all stockholders are entitled to
cast on the particular matter shall constitute a quorum for the purpose of
considering such matter, except as otherwise expressly provided by law, by the
Certificate of Incorporation of the Corporation or by these By-Laws. The
stockholders present at a duly organized meeting can continue to do business
until adjournment, notwithstanding the withdrawal of enough stockholders to
leave less than a quorum. If a meeting cannot be organized because a quorum
has not attended, those present may adjourn the meeting from time to time to
such time (not more than 30 days after the next previous adjourned meeting)
and place as they may determine, without notice other than by announcement at
the meeting of the time and place of the adjourned meeting; and in the case of
any meeting called for the election of directors, those who attend the second
of such adjourned meetings, although entitled to cast less than a majority of
the votes entitled to be cast on any matter to be considered at the meeting,
shall nevertheless constitute a quorum for the purpose of electing directors.
Section 1.05 Voting. At every meeting of stockholders, each
holder of record of issued and outstanding stock of the Corporation entitled
to vote at such meeting shall be entitled to vote in person or by proxy and,
except where a date has been fixed as the record date for the determination of
stockholders entitled to notice of or to vote at such meeting, no holder of
record of a share of stock which has been transferred on the books of the
Corporation within 10 days next preceding the date of such meeting shall be
entitled to notice of or to vote at such meeting in respect of such share so
transferred. Resolutions of the stockholders shall be adopted, and any action
of the stockholders at a meeting upon any matter shall be taken and be valid,
only if at least a majority of the votes cast with respect to such resolutions
or matter are cast in favor thereof, except as otherwise expressly provided by
law, by the Certificate of Incorporation of the Corporation or by these
By-Laws. The Chairman of the Board (if one has been elected and is present)
shall be chairman, and the Secretary (if present) shall act as secretary, at
all meetings of the stockholders. In the absence of the Chairman of the Board,
the President shall be chairman and in the absence of both of them, the
chairman shall be designated by the Board of Directors; and in the absence of
the Secretary, an Assistant Secretary shall act as secretary of the meeting.
Section 1.06 Procedure at Stockholders' Meetings. The
organization of each meeting of the stockholders, the order of business
thereat and all matters relating to the manner of conducting the meetings
shall be determined by the chairman in accordance with such regulations, if
any, as may from time to time be prescribed by the Board of Directors. Such
rules, regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation,
the following: (i) the establishment of an agenda or order of business for the
meeting; (ii) the determination of when the polls shall open and close for any
given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv)
limitations on attendance at or participation in the meeting to stockholders
of record of the Corporation, their duly authorized and constituted proxies or
such other persons as the chairman of the meeting shall determine; (v)
restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (vi) limitations on the number of questions or comments that may
be by any participant and the time allotted for any such question or comment,
or all such questions or comments, in the aggregate. In addition to the
foregoing, the chairman may, for any reason and in his sole discretion,
adjourn or postpone any meeting of the stockholders at any time and from time
to time.
Section 1.07 Action Without Meeting. Subject to Section 4.07(B),
unless otherwise provided by the Certificate of Incorporation of the
Corporation, any action required to be taken at any annual or special meeting
of stockholders, or any action which may be taken at any annual or special
meeting of stockholders, 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, and such written consent is filed with the minutes of the
proceedings of the Corporation's stockholders. Notice of any corporate action
taken without a meeting by less than unanimous written consent shall be given
to those stockholders who have not consented in writing.
Section 1.08 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of
Directors of the Corporation and the proposal of business to be
considered by the stockholders at an annual meeting of stockholders must
be (a) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors (including by a
Committee appointed by the Board of Directors), (b) otherwise properly
brought before the meeting by or at the direction of the Board of
Directors (including by a Committee appointed by the Board of Directors),
or (c) otherwise properly brought before the meeting by a stockholder of
the Corporation who was a stockholder of record at the time of giving of
notice provided for in this Section 1.08(A), who is entitled to vote at
the meeting and who has complied with the notice procedures set forth in
this Section 1.08(A). Nominations of persons for election to the Board of
Directors of the Corporation shall exclusively be made by the Board (or a
Committee thereof appointed by the Board, including the Corporate
Governance Committee), which will consider nominations properly made by
stockholders in accordance with the procedures of Section 1.08(A) below.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to paragraph (A)(1) of
this Section 1.08, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation and such other business
must be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business
on the 60th day nor earlier than the close of business on the 120th day
prior to the first anniversary of the date of the preceding year's proxy
statement for the annual meeting; provided, however, that in the event
that the annual meeting is called for a date that is more than 25 days
before or more than 60 days after the first anniversary of the preceding
year's annual meeting, notice by the stockholder in order to be timely
must be so received not later than the close of business on the 10th day
following the day on which public announcement of the date of such annual
meeting is first made. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the
giving of a stockholder's notice as described above. Such stockholder's
notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election
contest, or is otherwise required, in each case pursuant to Regulation
14A under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations promulgated thereunder (including
such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected), along with a
description of all arrangements or understandings between the stockholder
and each nominee and any other person or persons (naming such person or
persons) pursuant to which the nomination or nominations are to be made
by the stockholders; (b) as to any other business that the stockholder
proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the reasons for conducting such
business at the meeting and any material interest in such business of
such stockholder and the beneficial owner, if any, on whose behalf the
proposal is made along with a description of all arrangements or
understandings between such stockholder and any other person or persons
in connection with the proposal of such business by such stockholder; (c)
a representation that the stockholder intends to appear in person or by
proxy at the meeting to nominate the person or persons or raise the
proposal specified in the notice; and (d) as to the stockholder giving
the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this By-Law to the contrary, but subject to Section
2.11 of these By- Laws, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and
there is no public announcement naming all of the nominees for director
or specifying the size of the increased Board of Directors made by the
Corporation at least 70 days prior to the first anniversary of the date
of the preceding year's proxy statement for the annual meeting, a
stockholder's notice required by this Section 1.08(A) shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the
Secretary at the principal executive offices of the Corporation not later
than the close of business on the 10th day following the day on which
such public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting.
Nominations of persons for election to the Board of Directors at a special
meeting of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting must be (a) specified in the notice of meeting
(or any supplement thereto) given by or at the direction of the Board of
Directors (including by a Committee appointed by the Board of Directors), (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors (including by a Committee appointed by the Board of
Directors), or (c) otherwise properly brought before the meeting by a
stockholder of the Corporation who was a stockholder of record at the time of
giving of notice provided for in this Section 1.08(B), who is entitled to vote
at the meeting and who complied with the notice procedures set forth in this
Section 1.08(B). Nominations of persons for election to the Board of Directors
of the Corporation shall exclusively be made by the Board (or a Committee
thereof appointed by the Board, including the Corporate Governance Committee),
which will consider nominations properly made by stockholders in accordance
with the procedures of Section 1.08(B) below. In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or
more directors to the Board of Directors, any such stockholder may propose for
nomination a person or persons (as the case may be), for election to such
position(s) as specified in the Corporation's notice of meeting, if the
stockholder's notice required by paragraph (A)(2) of this Section 1.08 shall
be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 120th day prior to
such special meeting and not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day following the day
on which public announcement is first made of the date of the special meeting.
In no event shall the public announcement of an adjournment of a special
meeting commence a new time period for the giving of a stockholder's notice as
described above.
(C) General.
(1) Only such persons who are nominated by the Board of
Directors, a Committee of the Board or a stockholder of the Corporation
in accordance with the procedures set forth in this Section 1.08 shall be
eligible to serve as directors and only such business shall be conducted
at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 1.08.
Except as otherwise provided by law, the Chairman of the meeting shall
have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made, or proposed, as the
case may be, in accordance with the procedures set forth in this Section
1.08 and, if any proposed nomination or business is not in compliance
with this Section 1.08, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this Section 1.08, "public announcement"
shall mean disclosure in a press release reported by the Dow Jones News
Service, 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 Exchange
Act.
(3) Notwithstanding the foregoing provisions of this Section
1.08, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to
the matters set forth in this Section 1.08. Nothing in this Section 1.08
shall be deemed to affect any rights of (i) stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act or (ii) the holders of any series of
Preferred Stock to elect directors under specified circumstances.
ARTICLE II
DIRECTORS
Section 2.01 Number, Election and Term of Office. The number of
directors which shall constitute the full Board of Directors shall be
determined by resolution of the board of directors or of the stockholders. The
directors shall be classified with respect to their terms of office into three
classes, each of which shall consist as nearly as possible of one-third of the
total number of directors. The term of office of one class of directors shall
expire at each annual meeting of the shareholders, so that at each such
meeting the successors to the directors of the class whose term expires at
such meeting shall be elected to hold office for a term of three years. If the
number of directors is increased, the board of directors shall assign the
additional directorships so created among the classes of directors. Each
director shall hold office for the term for which he is elected and thereafter
until his successor is duly elected or until his prior death, resignation or
removal. Directors need not be stockholders. Directors shall be nominated as
set forth in Section 1.08.
Section 2.02 Annual Meeting. Annual Meetings of the Board of
Directors shall be held each year at the same place as and immediately after
the annual meeting of stockholders, or at such other place and time as shall
theretofore have been determined by the Board. At its regular annual meeting,
the Board of Directors shall organize itself and elect the officers of the
Corporation for the ensuing year, and may transact any other business.
Section 2.03 Regular Meetings. Regular meetings of the Board of
Directors may be held at such intervals and at such time and place as shall
from time to time be determined by the Board. After there has been such
determination and notice thereof has been once given to each person then a
member of the Board of Directors, regular meetings may be held at such
intervals and time and place without further notice being given.
Section 2.04 Special Meetings. Special meetings of the Board of
Directors may be called at any time by the Board, by the Chairman of the Board
or by the President to be held on such day and at such time and place as shall
be specified by the person or persons calling the meeting.
Section 2.05 Notice of Annual and Special Meetings. Except as
otherwise expressly required by law, notice of the annual meeting of the Board
of Directors need not be given. Except as otherwise expressly required by law,
notice of every special meeting of the Board of Directors specifying the
place, date and time thereof shall be given to each director (i) by being
mailed on at least the third day prior to the date of the meeting, (ii) by
being given personally or by telephone at least 24 hours prior to the time of
the meeting or (iii) by electronic transmission in accordance with applicable
law at least 24 hours prior to the time of the meeting, and shall be deemed
given at the time specified by applicable law. A written waiver of notice of a
special meeting, signed by the person or persons entitled to such notice,
whether before or after the date and time stated therein fixed for the
meeting, shall be deemed the equivalent of such notice, and attendance of a
director at a meeting shall constitute a waiver of notice of such meeting
except when the director attends the meeting for the express purpose of
objecting, when he enters the meeting, to the transaction of any business
because the meeting is not lawfully called or convened.
Section 2.06 Quorum and Manner of Acting. At all meetings of the
Board of Directors, except as otherwise expressly provided by law or by the
Certificate of Incorporation of the Corporation or these By-Laws, the presence
of a majority of the full Board shall be necessary and sufficient to
constitute a quorum for the transaction of business. If a quorum is not
present at any meeting, the meeting may be adjourned from time to time by a
majority of the directors present until a quorum as aforesaid shall be
present, but notice of the time and place to which such a meeting is adjourned
shall be given to any directors not present (i) by being mailed on at least
the third day prior to the date of the reconvened meeting, (ii) by being given
personally or by telephone at least 24 hours prior to the time of the
reconvened meeting or (iii) by electronic transmission in accordance with
applicable law at least 24 hours prior to the time of the reconvened meeting,
and shall be deemed given at the time specified by applicable law. Resolutions
of the Board of Directors shall be adopted, and any action of the Board at a
meeting upon any matter shall be taken and be valid, only with the affirmative
vote of at least a majority of the directors present at the meeting, except as
otherwise provided herein. The Chairman of the Board (if one has been elected
and is present) shall be chairman, and the Secretary (if present) shall act as
secretary, at all meetings of the Board. In the absence of the Chairman of the
Board, the President shall be chairman, and in the absence of both of them the
directors present shall select a member of the Board of Directors to be
chairman; and in the absence of the Secretary, the chairman of the meeting
shall designate any person to act as secretary of the meeting.
Section 2.07 Action Without Meeting. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if a consent in writing,
setting forth the actions so taken, shall be signed by all members of the
Board or such committees, as the case may be, and such written consent is
filed with the minutes of proceedings of the Board or committee.
Section 2.08 Participation by Conference Telephone. Members of the
Board of Directors of the Corporation, or any committee designated by the
Board, may participate in a meeting of the Board or committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can speak to and hear each other, and
participation in a meeting by such means shall constitute presence in person
at such meeting.
Section 2.09 Resignations. A director may resign by submitting
his written resignation to the Chairman of the Board (if one has been elected)
or the Secretary. Unless otherwise specified therein, the resignation of a
director need not be accepted to make it effective and shall be effective
immediately upon its receipt by such officer or as otherwise specified
therein. If the resignation of a director specifies that it shall be effective
at some time later than receipt, the resigning director shall be competent to
act on all matters before the Board of Directors, including filling the
vacancy caused by such resignation until the effective time specified in the
resigning director's notice of resignation.
Section 2.10 Removal of Directors. The entire Board of Directors
or any individual director may be removed at any time (a) for cause by the
vote of stockholders entitled to cast at least a majority of the votes which
all stockholders would then be entitled to cast at a regular annual election
of directors, and (b) without cause by the vote of stockholders then entitled
to cast at least 75% of such votes, in either case given at a special meeting
of the stockholders called for the purpose, whether or not the Corporation's
stockholders are then entitled to vote cumulatively in the election of
directors. The vacancy or vacancies caused in the Board of Directors by such
removal may but need not be filled by the stockholders at such meeting.
Section 2.11 Vacancies. Any vacancy that shall occur in the
Board of Directors by reason of death, resignation, disqualification, removal,
increase in the number of directors or any other cause whatever shall, unless
filled as provided in Section 2.10 of this Article II, be filled by a majority
of the remaining numbers of the Board of Directors, whether or not a quorum,
and each person so elected shall be a director until his successor is elected
by the stockholders at a meeting called for the purpose of electing directors,
or until his prior death, resignation or removal. The term of office of any
person elected a director pursuant to this Section 2.11 shall expire at the
next succeeding annual meeting of the stockholders regardless of the class to
which such directorship is assigned pursuant to Section 2.01 and at such
annual meeting the stockholders shall elect a director to fill such
directorship until the expiration of the remaining term of office of directors
of that class.
Section 2.12 Compensation of Directors. The Corporation may allow
compensation to its directors for their services, as determined from time to
time by resolution adopted by the Board of Directors.
Section 2.13 Committees. The Board of Directors may, to the
fullest extent permitted by Section 141(c)(2) of the General Corporation Law
of the State of Delaware, designate one or more committees consisting of
directors to have and exercise such authority, powers and duties of the Board
in the management of the business and affairs of the Corporation as the
resolution of the Board creating such committee may specify and as is
otherwise permitted by law. Subject to the rules and regulations of the New
York Stock Exchange, or any other national securities exchange on which the
Corporation's securities may be listed or any automated inter-dealer quotation
system on which the Corporation's securities may be quoted, the Board of
Directors may designate one or more directors as alternate members of any
committee, who may replace any absent or disqualified member at any meeting of
the committee. Subject to the rules and regulations of the New York Stock
Exchange, or any other national securities exchange on which the Corporation's
securities may be listed or any automated inter-dealer quotation system on
which the Corporation's securities may be quoted, in the absence or
disqualification of any member of such committee or committees, the member or
members thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint another
director to act at the meeting in the place of such absent or disqualified
member.
ARTICLE III
OFFICERS AND EMPLOYEES
Section 3.01 Executive Officers. The Executive Officers of the
Corporation shall be the President, a Secretary and a Treasurer, and may
include a Chairman of the Board and one or more Vice Presidents as the Board
of Directors may from time to time determine, all of whom shall be elected by
the Board of Directors. Any two or more offices may be held by the same
person. Each Executive Officer shall hold office until the next succeeding
annual meeting of the Board of Directors and thereafter until his successor is
duly elected and qualifies, or until his earlier death, resignation or
removal.
Section 3.02 Additional Officers; Other Agents and Employees. The
Board of Directors may from time to time appoint or hire such additional
officers, assistant officers, agents, employees and independent contractors as
the Board deems advisable; and the Board or the President shall prescribe
their duties, conditions of employment and compensation. Subject to the power
of the Board of Directors, the President may employ from time to time such
other agents, employees, and independent contractors as he may deem advisable
for the prompt and orderly transaction of the business of the Corporation, and
he may prescribe their duties and the conditions of their employment, fix
their compensation and dismiss them, without prejudice to their contract
rights, if any.
Section 3.03 The Chairman. If there shall be a Chairman of the
Board, he shall be elected from among the directors, shall preside at all
meetings of the stockholders and of the Board, and shall have such other
powers and duties as from time to time may be prescribed by the Board.
Section 3.04 The President. The President shall be the chief
executive officer of the Corporation. Subject to the control of the Board of
Directors, the President shall have general policy supervision of and general
management and executive powers over all the property, business, operations
and affairs of the Corporation, and shall see that the policies and programs
adopted or approved by the Board are carried out. The President shall exercise
such further powers and duties as from time to time may be prescribed in these
By-Laws or by the Board of Directors.
Section 3.05 The Vice Presidents. The Vice Presidents may be
given by resolution of the Board of Directors general executive powers,
subject to the control of the President, concerning one or more or all
segments of the operations of the Corporation. The Vice Presidents shall
exercise such further powers and duties as from time to time may be prescribed
in these By-Laws or by the Board of Directors or by the President. At the
request of the President or in his absence or disability, the senior Vice
President shall exercise all the powers and duties of the President.
Section 3.06 The Secretary and Assistant Secretaries. It shall
be the duty of the Secretary (a) to keep or cause to be kept an original or
duplicate record of the proceedings of the stockholders and the Board of
Directors, and a copy of the Certificate of Incorporation of the Corporation
and of these By-Laws; (b) to attend to the giving of notices of the
Corporation as may be required by law or these By-Laws; (c) to be custodian of
the corporate records and of the seal of the Corporation and see that the seal
is affixed to such documents as may be necessary or advisable; (d) to have
charge of the stock books of the Corporation, and a share register, giving the
names of the stockholders in alphabetical order, and showing their respective
addresses, the number and classes of shares held by each, the number and date
of certificates issued for the shares, and the date of cancellation of every
certificate surrendered for cancellation; and (e) to exercise all powers and
duties incident to the office of Secretary, and such other powers and duties
as may be prescribed by the Board of Directors or by the President from time
to time. The Secretary by virtue of his office shall be an Assistant
Treasurer. The Assistant Secretaries shall assist the Secretary in the
performance of his duties and shall also exercise such further powers and
duties as from time to time may be assigned to them by the Board of Directors,
the President or the Secretary. As the direction of the Secretary or in his
absence or disability, an Assistant Secretary shall perform the duties of the
Secretary.
Section 3.07 The Treasurer and Assistant Treasurers. The Treasurer
shall have custody of all the funds and securities of the Corporation. He
shall collect all moneys due the Corporation and deposit such moneys to the
credit of the Corporation in such banks, trust companies, or other
depositories as may have been duly designated by the Board of Directors. He
shall endorse for collection on behalf of the Corporation, checks, notes,
drafts and other documents, and may sign and deliver receipts, vouchers and
releases of liens evidencing payments made to the Corporation. Subject to
Section 5.01 of these By-Laws, he shall cause to be disbursed the funds of the
Corporation by payment in cash or by checks or drafts upon the authorized
depositories of the Corporation. He shall have charge of the books and
accounts of the Corporation. He shall perform all acts incident to the office
of Treasurer and such other duties as may be assigned to him by the Board of
Directors. The Treasurer by virtue of his office shall be an Assistant
Secretary. The Assistant Treasurers shall assist the Treasurer in the
performance of his duties and shall also exercise such further powers and
duties as from time to time may be assigned to them by the Board of Directors,
the President or the Treasurer. At the direction of the Treasurer or in his
absence or disability, an Assistant Treasurer shall perform the duties of the
Treasurer.
Section 3.08 Vacancies. Vacancy in any office or position by
reason of death, resignation, removal, disqualification, disability or other
cause, shall be filled in the manner provided in this Article III for regular
election or appointment to such office.
Section 3.09 Delegation of Duties. The Board of Directors may in
its discretion delegate for the time being the powers and duties, or any of
them, of any officer to any other person whom it may select.
ARTICLE IV
SHARES OF CAPITAL STOCK
Section 4.01 Share Certificates. Every holder of stock in the
Corporation shall be entitled to a certificate or certificates, to be in such
form as the Board of Directors may from time to time prescribe, signed by the
Chairman of the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary. The signatures of such officers may be facsimile. Each such
certificate shall set forth the name of the registered holder thereof, the
number and class of shares and the designation of the series, if any, which
the certificate represents. The Board of Directors may, if it so determines,
direct that certificates for shares of stock of the Corporation be signed by a
transfer agent or registered by a registrar or both, in which case such
certificates shall not be valid until so signed or registered.
In case any officer of the Corporation who shall have signed, or
whose facsimile signature shall have been used on, any certificate for shares
of stock of the Corporation shall cease to be such officer, whether because of
death, resignation, removal or otherwise, before such certificate shall have
been delivered by the Corporation, such certificate shall nevertheless be
deemed to have been adopted by the Corporation and may be issued and delivered
as though the person who signed such certificate or whose facsimile signature
shall have been used thereon had not ceased to be such officer.
Section 4.02 Transfer of Shares. Transfers of shares of stock of
the Corporation shall be made only on the books of the Corporation by the
registered holder thereof or by his attorney thereunto authorized by an
instrument duly executed and filed with the Corporation, and on surrender of
the certificate or certificates for such shares properly endorsed or
accompanied by properly executed stock powers and evidence of the payment of
all taxes imposed upon such transfer. Except as provided in Section 4.04 of
this Article IV, every certificate surrendered for transfer shall be cancelled
and no new certificate or certificates shall be issued in exchange for any
existing certificate until such existing certificate shall have been so
cancelled.
Section 4.03 Transfer Agents and Registrars. The Board of
Directors may appoint any one or more qualified banks, trust companies or
other corporations organized under any law of any state of the United States
or under the laws of the United States as agent or agents for the Corporation
in the transfer of the stock of the Corporation and likewise may appoint any
one or more such qualified banks, trust companies or other corporations as
registrar or registrars of the stock of the Corporation.
Section 4.04 Lost, Stolen, Destroyed or Mutilated Certificates.
New certificates for shares of stock may be issued to replace certificates
lost, stolen, destroyed or mutilated upon such terms and conditions, which may
but need not include the giving of a satisfactory bond or other indemnity, as
the Board of Directors may from time to time determine.
Section 4.05 Regulations Relating to Shares. The Board of
Directors shall have power and authority to make such rules and regulations
not inconsistent with these By-Laws or with law as it may deem expedient
concerning the issue, transfer and registration of certificates representing
shares of stock of the Corporation.
Section 4.06 Holders of Record. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder and owner in fact thereof 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 have express or other notice thereof,
except as otherwise expressly provided by the laws of the State of Delaware.
Section 4.07 Fixing of Record Date.
(A) The Board of Directors may fix a time, not less than 10 or
more than 60 days prior to the date of any meeting of stockholders, or the
date fixed for the payment of any dividend or distribution, or the date for
the allotment of rights, or the date when any change or conversion or exchange
of shares will be made or go into effect, as a record date for the
determination of the stockholders entitled to notice of, or to vote at, any
such meeting, or entitled to receive payment of any such dividend or
distribution, or to receive any such allotment of rights, or to exercise the
rights in respect to any such change, conversion or exchange of shares. In
such case, only such stockholders as shall be stockholders of record on the
date so fixed shall be entitled to notice of, or to vote at, such meeting or
to receive payment of such dividend, or to receive such allotment of rights,
or to exercise such rights, as the case may be, notwithstanding any transfer
of any shares on the books of the Corporation after any record date fixed as
aforesaid. If no record date is fixed by the Board of Directors, the record
date for the determination of the stockholders entitled to notice of, and to
vote at, any such meetings, and any adjournment thereof, or entitled to
receive payment of any such dividend, or to any such allotment of rights, or
to exercise the rights in respect of any change, conversion or exchange of
capital stock, shall, with respect to any meeting of stockholders, be at the
close of business on the day preceding the day on which notice is given, or if
notice is waived, at the close of business on the day preceding the day on
which the meeting is held or shall , with respect to any dividend, allotment
of rights or exercise of rights in respect of any change, conversion or
exchange of capital stock, be the date of adoption by the Board of a
resolution approving such matters.
(B) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than ten (10) days after
the date upon which the resolution fixing the record date is adopted by the
Board of Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary of the Corporation, request the Board of Directors to fix a
record date. The Board of Directors shall promptly, but in all events within
ten (10) days after the date on which such a request is received, adopt a
resolution fixing the record date. If no record date has been fixed by the
Board of Directors within ten (10) days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the
Board of Directors is required by applicable law, shall be the first date on
which a signed written consent setting forth the action taken or proposed to
be taken is delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or
agent of the Corporation having custody of the book in which proceedings of
meetings of the stockholders are recorded, to the attention of the Secretary
of the Corporation. Delivery made to the Corporation's registered office shall
be by hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
ARTICLE V
LOANS, NOTES, CHECKS, CONTRACTS AND OTHER INSTRUMENTS
Section 5.01 Notes, Checks, etc. All notes, drafts, acceptance,
checks, endorsements (other than for deposit) and all evidences of
indebtedness of the Corporation whatsoever shall be signed by the President,
or shall be signed by such officers or agents and shall be subject to such
requirements as to countersignature or other conditions as the Board of
Directors from time to time may designate. Facsimile signatures on checks may
be used unless prohibited by the Board of Directors.
Section 5.02 Execution of Instruments Generally. Except as
provided in Section 5.01 of this Article V, all contracts and other
instruments requiring execution by the Corporation may be executed and
delivered by the President, any Vice President or the Treasurer, and authority
to sign any such contracts or instruments, which may be general or confined to
specific instances, may be conferred by the Board of Directors upon any other
person or persons. Any person having authority to sign on behalf of the
Corporation may delegate, from time to time, by instrument in writing, all or
any part of such authority to any person or persons if authorized so to do by
the Board of Directors.
Section 5.03 Proxies in Respect of Stock or Other Securities of
Other Corporations. Unless otherwise provided by the Board of Directors, the
President may from time to time appoint an attorney or attorneys or an agent
or agents of the Corporation to exercise in the name and on behalf of the
Corporation the powers and rights which the Corporation may have as the holder
of stock or other securities in any other corporation to vote or consent in
respect of such stock or other securities, may instruct the person or persons
so appointed as to the manner of exercising such powers and rights and may
execute or cause to be executed in the name and on behalf of the Corporation
and under its corporate seal or otherwise all such written proxies or other
instruments as he may deem necessary or proper in order that the Corporation
may exercise its said powers and rights.
ARTICLE VI
GENERAL PROVISION
Section 6.01 .Offices. The registered office of the Corporation
in the State of Delaware shall be at 1209 Orange Street, in the City of
Wilmington, County of New Castle, Delaware 19801. The name of its registered
agent at such address is The Corporation Trust Company. The Corporation may
have other offices, within or without the State of Delaware, at such place or
places as the Board of Directors may from time to time determine or the
business of the Corporation may require.
Section 6.02 Corporate Seal. The Board of Directors shall
prescribe the form of a suitable corporate seal, which shall contain the full
name of the Corporation and the year and state of incorporation. Such seal may
be used by causing it or a facsimile or reproduction thereof to be affixed to
or placed upon the document to be sealed.
Section 6.03 Fiscal Year. Unless otherwise determined by the
Board of Directors, the fiscal year of the Corporation shall be the calendar
year.
ARTICLE VII
VALIDATION OF CERTAIN CONTRACTS
Section 7.01 No contract or other transaction between the
Corporation and another person shall be invalidated or otherwise adversely
affected by the fact that any one or more stockholders, directors or officers
of the Corporation:
(A) is pecuniarily or otherwise interested in, or is a
stockholder, director, officer, or member of, such other person, or
(B) is a party to, or is in any other way pecuniarily or otherwise
interested in, the contract or other transaction, or
(C) is in any way connected with any person pecuniarily or
otherwise interested in such contract or other transaction, provided the fact
of such interest shall be disclosed or known to the Board of Directors or the
stockholders, as the case may be, and in any action of the stockholders or of
the Board authorizing or approving any such contract or other transaction, any
and every stockholder or director may be counted in determining the existence
of a quorum with like force and effect as though he were not so interested, or
were not such a stockholder, director, member or officer, or were not such a
party, or were not so connected. Such director, stockholder or officer shall
not be liable to account to the Corporation for any profit realized by him
from or through any such contract or transaction approved or authorized as
aforesaid. As used herein, the term "person" includes a corporation,
partnership, firm, association or other legal entity.
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 8.01 Indemnification. Directors and officers of the
Corporation shall be indemnified as of right to the fullest extent now or
hereafter permitted by law in connection with any actual or threatened civil,
criminal, administrative or investigative action, suit or proceeding (whether
brought by or in the name of the Corporation or otherwise) arising out of
their service to the Corporation or to another organization at the request of
the Corporation. Persons who are not directors or officers of the Corporation,
including each person who at the request of the Corporation has served as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust or other enterprise (individually, including directors or
officers of the Corporation, an "Indemnified Person" and collectively, the
"Indemnified Persons") may be similarly indemnified in respect of such service
to the extent authorized at any time by the Board of Directors of the
Corporation. The Corporation may purchase and maintain insurance to protect
itself and any Indemnified Person against any liability asserted against him
and incurred by him in respect of such service whether or not the Corporation
would have the power to indemnify him against such liability by law or under
the provisions of this Article. The provisions of this Article shall be
applicable to actions, suits or proceedings commenced after the adoption
hereof, whether arising from acts or omissions occurring before or after the
adoption hereof, and to Indemnified Persons who have ceased to render such
service, and shall inure to the benefit of the heirs, executors and
administrators of the directors, officers and other persons referred to in
this Article VIII.
Section 8.02 Payment of Indemnification. Expenses (including
attorneys' fees) incurred by an Indemnified Person in defending any civil,
criminal, administrative or investigative action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
Indemnified Person to repay such amount if it shall ultimately be determined
that such person is not entitled to be indemnified by the corporation as
authorized in this Article VIII. Such expenses (including attorneys' fees)
incurred by Indemnified Persons may be so paid upon such terms and conditions,
if any, as the Corporation deems appropriate.
Section 8.03 Exclusivity. The indemnification and advancement
of expenses provided by, or granted pursuant to, this Article VIII shall not
be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under the Certificate of
Incorporation of the Corporation, these By-Laws or any agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
such person's official capacity and as to action in another capacity while
holding such office, it being the policy of the Corporation that
indemnification of the persons specified in this Article VIII shall be made to
the fullest extent permitted by law. The provisions of this Article VIII shall
not be deemed to preclude the indemnification of any person who is not
specified in Article VIII but whom the Corporation has the power or obligation
to indemnify under applicable law, or otherwise.
ARTICLE IX
AMENDMENTS
Section 9.01 These By-Laws may be amended, altered and
repealed, and new By-Laws may be adopted, by the stockholders or the Board of
Directors of the Corporation at any regular or special meeting, except that
Sections 2.01, 2.10, 2.11 and this Section 9.01 may only be amended by the
vote of stockholders entitled to cast at least 75% of the vote which all
stockholders are then entitled to cast with respect to such amendment. No
provision of these By-Laws shall vest any property or contract right in any
stockholder.