EXHIBIT 3.2
BY-LAWS OF
UNOVA, INC.
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1. DELAWARE OFFICE.
The principal office of the Corporation in the State of Delaware shall be
located in the City of Wilmington, County of New Castle, and the name and
address of its registered agent is Corporation Service Company, 1013 Centre
Road, Wilmington, Delaware.
SECTION 1.2. OTHER OFFICES.
The Corporation may have such other offices, either within or without the
State of Delaware, as the Board of Directors may designate or as the business
of the Corporation may from time to time require.
SECTION 1.3. BOOKS AND RECORDS.
The books and records of the Corporation may be kept outside the State of
Delaware at such place or places as may from time to time be designated by
the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETING.
The annual meeting of the stockholders of the Corporation shall be held on
such date commencing in the year 1999 and at such place and time as may be
fixed by resolution of the Board of Directors.
SECTION 2.2. SPECIAL MEETING.
Subject to the rights of the holders of any series of stock having a
preference over the Common Stock of the Corporation as to dividends or upon
liquidation ("Preferred Stock") with respect to such series of Preferred
Stock, special meetings of the stockholders may be called only by the
Chairman of the Board or by the Board of Directors pursuant to a resolution
adopted by a majority of the total number of directors which the Corporation
would have if there were no vacancies (the "Whole Board").
SECTION 2.3. PLACE OF MEETING.
The Board of Directors or the Chairman of the Board, as the case may be, may
designate the place of meeting for any annual meeting or for any special
meeting of the stockholders called by the Board of Directors or the Chairman
of the Board. If no designation is so made, the place of meeting shall be
the principal office of the Corporation.
SECTION 2.4. NOTICE OF MEETING.
Written or printed notice, stating the place, day, and hour of the meeting
and the purpose or purposes for which the meeting is called, shall be
delivered by the Corporation not less than ten (10) days nor more than sixty
(60) days before the date of the meeting, either personally or by mail, to
each stockholder of record entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United States
mail with postage thereon prepaid, addressed to the stockholder at his, her,
or its address as it appears on the stock transfer books of the Corporation.
Such further notice shall be given as may be required by law. 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. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance
with Section 7.4 of these By-Laws. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Certificate of Incorporation
otherwise provides) any special meeting of the stockholders may be canceled,
by resolution of the Board of Directors upon public notice given prior to the
date previously scheduled for such meeting of stockholders.
SECTION 2.5. QUORUM AND ADJOURNMENT.
Except as otherwise provided by law or by the Certificate of Incorporation,
the holders of a majority of the outstanding shares of the Corporation
entitled to vote generally in the election of directors (the "Voting Stock"),
represented in person or by proxy, shall constitute a quorum at a meeting of
stockholders, except that when specified business is to be voted on by a
class or series of stock voting as a class, the holders of a majority of the
shares of such class or series shall constitute a quorum of such class or
series for the transaction of such business. The Chairman of the meeting or
a majority of the shares so represented may adjourn the meeting from time to
time, whether or not there is such a quorum. No notice of the time and place
of adjourned meetings need be given except as required by law. The
stockholders present at a duly called meeting at which a quorum is present
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 2.6. PROXIES.
At all meetings of stockholders, a stockholder may vote by proxy executed in
writing (or in such other manner prescribed by the General Corporation Law of
the State of Delaware) by the stockholder, or by his duly authorized attorney
in fact.
SECTION 2.7. 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 may be made at an annual meeting of stockholders (a) pursuant
to the Corporation's notice of meeting, (b) by or at the direction of the
Board of Directors, or (c) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of notice provided for in this
By-Law, who is entitled to vote at the meeting, and who complies with the
notice procedures set forth in this By-Law.
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(2) For nominations or other business to be properly brought before
an annual meeting by a stockholder pursuant to clause (c) of paragraph
A.(1) of this By-Law, the stockholder must have given timely notice thereof
in writing to the Secretary of the Corporation and such other business must
otherwise 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 90th day nor earlier than the close of business on the 120th day
prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
more than 30 days before or more than 60 days after such anniversary date,
notice by the stockholder to be timely must be so delivered not earlier
than the close of business on the 120th day prior to such annual meeting
and not later than the close of business on the later of the 90th day prior
to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation.
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
re-election 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 Rule 14a-11 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); (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; and (c) 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, 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 by the Corporation naming all
of the nominees for director or specifying the size of the increased Board
of Directors at least 100 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this
By-Law 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 may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation's notice of meeting (a) by or
at the direction of the Board of Directors or (b) provided that the Board of
Directors has determined that directors shall be elected at such meeting, by
any stockholder of the Corporation who is a stockholder of record at the time
of giving of notice provided for in this By-Law, who shall be entitled to
vote at the meeting and who complies with the notice procedures set forth in
this By-Law. 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 nominate a
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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 By-Law 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 and of the
nominees proposed by the Board of Directors to be elected at such 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 in accordance with the
procedures set forth in this By-Law 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 By-Law. 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 By-Law and, if any proposed nomination or
business is not in compliance with this By-Law, to declare that such
defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "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 By-Law, 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 By-Law. Nothing in this By-Law shall be deemed
to affect any rights (a) of stockholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-8 under the
Exchange Act or (b) of the holders of any series of Preferred Stock to
elect directors under specified circumstances.
SECTION 2.8. PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED VOTE.
Election of directors at all meetings of the stockholders at which directors
are to be elected shall be by ballot, and, subject to the rights of the
holders of any series of Preferred Stock to elect directors under specified
circumstances, a plurality of the votes cast thereat shall elect directors.
Except as otherwise provided by law, the Certificate of Incorporation, or
these By-Laws, in all matters other than the election of directors, the
affirmative vote of a majority of the shares present in person or represented
by proxy at the meeting and entitled to vote on the matter shall be the act
of the stockholders.
SECTION 2.9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS.
The Board of Directors by resolution shall appoint one or more inspectors,
which inspector or inspectors may include individuals who serve the
Corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives, to act at the meetings of stockholders
and make a written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If no
inspector or alternate has been appointed to act or is able to act at a
meeting of stockholders, the Chairman of the meeting shall appoint one or
more inspectors to act at the meeting. Each inspector, before discharging
his or her duties, shall take and sign an oath faithfully to execute the
duties of inspector with strict
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impartiality and according to the best of his or her ability. The
inspector(s) shall have the duties prescribed by law.
The Chairman or the Secretary of the meeting shall fix and announce at the
meeting the date and time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting.
SECTION 2.10. NO STOCKHOLDER ACTION BY WRITTEN CONSENT.
Subject to the rights of the holders of any series of Preferred Stock with
respect to such series of Preferred Stock, any action required or permitted
to be taken by the stockholders of the Corporation must be effected at an
annual or special meeting of stockholders of the Corporation and may not be
effected by any consent in writing by such stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS.
The business and affairs of the Corporation shall be managed under the
direction of the Board of Directors. In addition to the powers and
authorities by these By-Laws expressly conferred upon them, the Board of
Directors may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by statute or by the Certificate of
Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
SECTION 3.2. NUMBER, TENURE, AND QUALIFICATIONS.
Subject to the rights of the holders of any series of Preferred Stock to
elect directors under specified circumstances, the number of directors shall
be fixed from time to time exclusively pursuant to a resolution adopted by a
majority of the Whole Board. The directors, other than those who may be
elected by the holders of any series of Preferred Stock under specified
circumstances, shall be divided, with respect to the time for which they
severally hold office, into three classes, as nearly equal in number as is
reasonably possible, with the term of office of the first class to expire at
the 1999 annual meeting of stockholders, the term of office of the second
class to expire at the 2000 annual meeting of stockholders and the term of
office of the third class to expire at the 2001 annual meeting of
stockholders, with each director to hold office until his or her successor
shall have been duly elected and qualified. At each annual meeting of
stockholders, commencing with the 1999 annual meeting, (i) directors elected
to succeed those directors whose terms then expire shall be elected for a
term of office to expire at the third succeeding annual meeting of
stockholders after their election, with each director to hold office until
his or her successor shall have been duly elected and qualified, and (ii) if
authorized by a resolution of the Board of Directors, directors may be
elected to fill any vacancy on the Board of Directors, regardless of how such
vacancy shall have been created.
SECTION 3.3. REGULAR MEETINGS.
A regular meeting of the Board of Directors shall be held immediately after
the annual meeting of stockholders without other notice than this By-Law.
Regular meetings of the directors may be held without notice at such place
and times as shall be determined from time to time by the Board of Directors.
SECTION 3.4. SPECIAL MEETINGS.
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Special meetings of the Board of Directors shall be called at the request of
the Chairman of the Board, the President, or a majority of the Board of
Directors then in office. The person or persons authorized to call special
meetings of the Board of Directors may fix the place and time of the meetings.
SECTION 3.5. NOTICE.
Notice of any special meeting of directors shall be given to each director at
his or her business or residence in writing by hand delivery, first-class or
overnight mail or courier service, telegram or facsimile transmission,
electronic mail, or orally by telephone. If mailed by first-class mail, such
notice shall be deemed adequately delivered when deposited in the United
States mails so addressed, with postage thereon prepaid, at least five (5)
days before such meeting. If by telegram, overnight mail, or courier
service, such notice shall be deemed adequately delivered when the telegram
is delivered to the telegraph corporation or the notice is delivered to the
overnight mail or courier service corporation at least twenty-four (24) hours
before such meeting. If by facsimile transmission or electronic mail, such
notice shall be deemed adequately delivered when the notice is transmitted at
least twelve (12) hours before such meeting. If by telephone or by hand
delivery, the notice shall be given at least twelve (12) hours prior to the
time set for the meeting. Neither the business to be transacted at, nor the
purpose of, any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting, except for amendments to these
By-Laws, as provided under Section 8.1. A meeting may be held at any time
without notice if all the directors are present or if those not present waive
notice of the meeting in accordance with Section 7.4 of these By-Laws.
SECTION 3.6. ACTION BY CONSENT OF BOARD OF DIRECTORS.
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 all
members of the Board or committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
SECTION 3.7. CONFERENCE TELEPHONE MEETINGS.
Members of the Board of Directors, or any committee thereof, may participate
in a meeting of the Board of Directors or such committee by means of
conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and such
participation in a meeting shall constitute presence in person at such
meeting.
SECTION 3.8. QUORUM.
Subject to Section 3.9, a whole number of directors equal to at least a
majority of the Whole Board shall constitute a quorum for the transaction of
business, but if at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of the directors present may adjourn the
meeting from time to time without further notice. The act of the majority of
the directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors. The directors present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough directors to leave less than a quorum.
SECTION 3.9. VACANCIES.
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Subject to applicable law and the rights of the holders of any series of
Preferred Stock with respect to such series of Preferred Stock, and unless
the Board of Directors otherwise determines, vacancies resulting from death,
resignation, retirement, disqualification, removal from office or other
cause, and newly created directorships resulting from any increase in the
authorized number of directors, may be filled only by the affirmative vote of
a majority of the remaining directors, though less than a quorum of the Board
of Directors, and directors so chosen shall hold office for a term expiring
at the annual meeting of stockholders at which the term of office of the
class to which they have been elected expires and until any such director's
successor shall have been duly elected and qualified. No decrease in the
number of authorized directors constituting the Whole Board shall shorten the
term of any incumbent director.
SECTION 3.10. EXECUTIVE AND OTHER COMMITTEES.
The Board of Directors may, by resolution adopted by a majority of the Whole
Board, designate an Executive Committee to exercise, subject to applicable
provisions of law, all the powers of the Board in the management of the
business and affairs of the Corporation when the Board is not in session,
including without limitation the power to declare dividends, to authorize the
issuance of the Corporation's capital stock and to adopt a certificate of
ownership and merger pursuant to Section 253 of the General Corporation Law
of the State of Delaware, and may, by resolution similarly adopted, designate
one or more other committees. The Executive Committee and each such other
committee shall consist of two or more directors of the Corporation. The
Board 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. Any such committee, other than the Executive Committee
(the powers of which are expressly provided for herein), may to the extent
permitted by law exercise such powers and shall have such responsibilities as
shall be specified in the designating resolution. 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 constituting a quorum, may unanimously appoint another member
of the Board to act at the meeting in the place of any such absent or
disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such proceedings to the Board when required.
A majority of any committee may determine its action and fix the time and
place of its meetings, unless the Board shall otherwise provide. Notice of
such meetings shall be given to each member of the committee in the manner
provided for in Section 3.5 of these By-Laws. The Board shall have power at
any time to fill vacancies in, to change the membership of, or to dissolve
any such committee. Nothing herein shall be deemed to prevent the Board from
appointing one or more committees consisting in whole or in part of persons
who are not directors of the Corporation; provided, however, that no such
committee shall have or may exercise any authority of the Board.
SECTION 3.11. REMOVAL.
Subject to the rights of the holders of any series of Preferred Stock with
respect to such series of Preferred Stock, any director, or the entire Board
of Directors, may be removed from office at any time, but only for cause and
only by the affirmative vote of the holders of at least 80 percent of the
voting power of all of the then outstanding shares of Voting Stock, voting
together as a single class.
SECTION 3.12. RECORDS.
The Board of Directors shall cause to be kept a record containing the minutes
of the proceedings of the meetings of the Board and of the stockholders,
appropriate stock books and registers and such books of records and accounts
as may be necessary for the proper conduct of the business of the Corporation.
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SECTION 3.13. ADVISORY DIRECTORS.
The Board of Directors may elect one or more advisory directors who shall
have such powers and shall perform such duties as the directors shall assign
to them. Advisory directors shall, upon election, serve until the next annual
meeting of stockholders. Advisory directors shall receive notices of all
meetings of the Board of Directors in the same manner and at the same time as
the directors. They shall attend said meetings referred to in said notices in
an advisory capacity, but will not cast a vote or be counted to determine a
quorum. Any advisory directors may be removed either with or without cause,
by a majority of the directors at the time in office, at any regular or
special meeting of the Board of Directors.
Nothing herein contained shall be construed to preclude any advisory director
from serving the Corporation in any other capacity as an officer, agent, or
otherwise.
ARTICLE IV
OFFICERS
SECTION 4.1. OFFICERS.
The officers of the Corporation shall consist of a Chairman of the Board, a
Chief Executive Officer, a Secretary, a Treasurer, and, if deemed necessary,
expedient, or desirable by the Board of Directors, a President, a Vice
Chairman of the Board, one or more Chief Operating Officers, one or more Vice
Presidents (one or more of whom may be designated Executive or Senior Vice
President), one or more Assistant Secretaries, and one or more Assistant
Treasurers. Except as may otherwise be provided in the resolution of the
Board of Directors choosing him or her, no officer other than the Chairman or
Vice Chairman of the Board, if any, need be a director. Except as may be
limited by law, any number of offices may be held by the same person, as the
directors may determine.
Unless otherwise provided for in the resolution choosing him or her, each
officer shall be chosen for a term that shall continue until the meeting of
the Board of Directors following the next annual meeting of stockholders and
until his or her successor shall have been chosen and qualified.
All officers of the Corporation shall have such authority and perform such
duties as shall be prescribed in the By-Laws or in the resolutions of the
Board of Directors designating and choosing such officers and shall have such
additional authority and duties as are incident to their office except to the
extent that such resolutions may be inconsistent therewith. Any officer may
be removed, with or without cause, by the Board of Directors. Any vacancy in
any office may be filled by the Board of Directors.
SECTION 4.2. OTHER OFFICERS AND AGENTS.
The Board of Directors may appoint such other officers and agents as it may
deem advisable, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time
to time by the Board of Directors. The Chief Executive Officer may appoint
key executives to the position of staff vice president. Such staff vice
presidents shall not be corporate officers and shall exercise such powers and
perform such duties as are assigned to them by the Chief Executive Officer or
the President, if any, or by any other officer of the Corporation designated
for such purpose by the Chief Executive Officer or President, if any.
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ARTICLE V
CAPITAL STOCK
SECTION 5.1. SHARES.
The shares of the capital stock of the Corporation shall be represented by
certificates or shall be uncertificated. Each registered holder of shares of
capital stock, upon request to the Corporation, shall be provided with a
stock certificate, representing the number of shares owned by such holder.
Absent specific request for such a certificate by the registered owner or
transferee thereof, all shares shall be uncertificated upon the original
issuance thereof by the Corporation or upon the surrender for transfer of the
certificate representing such shares to the Corporation or its transfer agent.
SECTION 5.2. CERTIFICATES FOR SHARES OF STOCK.
The certificates for shares of stock of the Corporation shall be in such
form, not inconsistent with the Certificate of Incorporation, as shall be
approved by the Board of Directors. All certificates shall be signed,
countersigned, and registered in such manner as the Board of Directors may by
resolution prescribe, which resolution may permit any of all of the
signatures on such certificates to be in facsimile.
In case any officer, transfer agent, or registrar who shall have signed or
whose facsimile signature has been placed upon any such certificate or
certificates shall cease to be such officer, transfer agent, or registrar of
the Corporation, whether because of death, resignation, or otherwise, before
such certificate or certificates shall have been delivered by the
Corporation, such certificate or certificates may nevertheless be issued and
delivered as though the person or persons who signed such certificate or
certificates had not ceased to be such officer, transfer agent, or registrar
of the Corporation.
All certificates for shares of stock shall be consecutively numbered as the
same are issued. The name of the person owning the shares represented
thereby with the number of such shares and the date of issue thereof shall be
entered on the books of the corporation.
Except as hereinafter provided, all certificates surrendered to the
Corporation for transfer shall be canceled and no new certificates or
uncertificated shares shall be issued until former certificates for the same
number of shares have been surrendered and canceled.
SECTION 5.3. LOST, STOLEN, OR DESTROYED CERTIFICATES.
No certificate for shares of stock in the Corporation shall be issued in
place of any certificate alleged to have been lost, destroyed, or stolen,
except on production of such evidence of such loss, destruction, or theft and
on delivery to the Corporation of a bond of indemnity in such amount, upon
such terms, and secured by such surety, as the Board of Directors or the
Secretary of the Corporation may in its, his, or her discretion require.
SECTION 5.4. TRANSFER OF SHARES.
Upon surrender to the Corporation or to the transfer agent of the Corporation
of a certificate for shares duly endorsed or accompanied by proper evidence
of succession, assignation, or authority to transfer, the Corporation shall
issue or cause to be issued uncertificated shares or, if requested by the
appropriate person, a new certificate to the person entitled thereto, cancel
the surrendered certificate, and record the transaction upon its books. Upon
receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be canceled
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and issuance of new equivalent uncertificated shares shall be made to the person
entitled thereto and the transaction shall be recorded upon the books of the
Corporation.
SECTION 5.5. REGULATIONS.
The Board of Directors shall have power and authority to make such rules and
regulations as it may deem expedient concerning the issue, transfer, and
registration of uncertificated shares or certificates for shares of stock of
the Corporation.
SECTION 5.6. STATEMENTS RELATING TO UNCERTIFICATED SECURITIES.
Within two business days after an issuance, transfer, pledge, or release from
a pledge of uncertificated shares has been registered, the Corporation shall
send to the registered owner thereof and, if shares are or were subject to a
registered pledge, to the registered pledgee, a written notice, signed in
such manner as the Board of Directors may prescribe stating (a) that the
Corporation shall furnish to such person(s) upon request and without charge a
full statement of the designation, relative rights, preferences and
limitations of the shares of each class of the Corporation's stock authorized
to be issued and the designation, relative rights, preferences and
limitations of each series of preferred stock so far as the same has been
fixed and the authority of the Board of Directors to designate and fix the
relative rights, preferences and limitations of other series; (b) the number
of shares and a description of the issue of which such shares are a part
including the class of shares, and the designation of the series, if any,
which have been issued, transferred, pledged or released from a pledge, as
the case may be; (c) the name, address, and taxpayer identification number,
if any, of the person or persons to which such shares have been issued or
transferred, and, in the case of registration of a pledge or a release from a
pledge, of the registered owner and the registered pledgee whose interest is
being granted or released, (d) any liens or restrictions of the Corporation,
and any adverse claims (i) which are embodied in a restraining order,
injunction, or other legal process served upon the Corporation at a time and
in a manner which afforded it a reasonable opportunity to act on it in
accordance with applicable law, (ii) of which the Corporation has received
written notification from the registered owner or the registered pledgee at a
time and in a manner which afforded it a reasonable opportunity to act on it
in accordance with applicable law, (iii) to which the registration of
transfer to the present registred owner was subject and so noted in a
statement sent to such person under this paragraph including restrictions on
transfer not imposed by the Corporation, and (iv) of which the Corporation is
charged with notice from a controlling instrument which the Corporation has
elected to require as assurance that a necessary endorsement or instruction
is genuine and effective, to which the shares are subject or a statement that
there are no such liens, restrictions, or adverse claims; and (e) the date
the issuance, transfer, pledge, or release from a pledge, as the case may be,
was registered. The Corporation shall maintain a printed copy of the most
recent statement sent to a person with respect to uncertificated shares
pursuant to this paragraph.
Within two business days after a transfer of uncertificated shares has been
registered, the Corporation shall send to the former registered owner and the
former registered pledgee, if any, a written notice stating (a) the number of
shares and a description of the issue of which such shares are a part,
including the class of shares, and the designation of the series, if any,
which have been transferred; (b) the name, address and taxpayer
identification number, if any, of the former registered owner and of the
former registered pledgee, if any; and (c) the date the transfer was
registered.
The Corporation shall send to each registered holder and registered pledgee
of uncertificated shares, no less frequently than annually, and at any time
upon the written request of any such person, a dated written notice stating
(a) if such notice is to the registered owner, the number of shares and a
description of the issue of which such shares are a part, including the class
of shares, and the designation of the series, if any, registered in the name
of such registered owner
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on the date of the statement; (b) the name, address, and taxpayer
identification number, if any, of the registered owner; (c) the name, address
and taxpayer identification number, if any, of any registered pledgee and the
number of shares subject to the pledge; and (d) any liens or restrictions of
the Corporation and any adverse claims (i) which are embodied in a
restraining order, injunction, or other legal process served upon the
Corporation at a time and in a manner which afforded it a reasonable
opportunity to act on it in accordance with applicable law, (ii) of which the
Corporation has received written notification from the registered owner or
the registered pledgee at a time and in a manner which afforded it a
reasonable opportunity to act on it in accordance with applicable law, (iii)
to which the registration of transfer to the present registered owner was
subject and so noted in a statement sent to such person under this paragraph,
including restrictions on transfer not imposed by the Corporation, and (iv)
of which the Corporation is charged with notice from a controlling instrument
which the Corporation has elected to require as assurance that a necessary
endorsement or instruction is genuine and effective, to which the shares are
subject or a statement that there are no such liens, restrictions or adverse
claims.
Each notice sent pursuant to this Section 5.6 shall bear a legend
substantially as follows: This statement is merely a record of the rights of
the addressee as of the time of its issuance. Delivery of the statement, of
itself, confers no rights upon the recipient. This statement is neither a
negotiable instrument nor a security.
ARTICLE VI
INDEMNIFICATION; ADVANCE OF EXPENSES
SECTION 6.1. RIGHT TO INDEMNIFICATION.
A. Each person who was or is made a party or is threatened to be made a party
to or is involved in any action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereinafter a "proceeding") by
reason of the fact that he or she or a person of whom he or she is the legal
representative is or was a director or officer of the Corporation or is or
was serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation or of a partnership, joint venture,
trust, or other enterprise, including service with respect to employee
benefit plans maintained or sponsored by the Corporation, whether the basis
of such proceeding is alleged action in an official capacity as a director,
officer, employee, or agent or in any other capacity while serving as a
director, officer, employee, or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware as the same exists or may hereafter
be amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification
rights than said law permitted the Corporation to provide prior to such
amendment), against all expense, liability, and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or
to be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person
who has ceased to be a director, officer, employee, or agent and shall inure
to the benefit of his or her heirs, executors, and administrators; PROVIDED,
HOWEVER, that except as provided in Section 6.2.B. of this Article VI, the
Corporation shall indemnify any such person seeking indemnification in
connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors.
B. Each person referred to in Section 6.1.A. of this Article VI shall be paid
by the Corporation the expenses incurred in connection with any proceeding in
advance of its final disposition, such advances to be paid by the Corporation
within 20 days after the receipt by the Corporation of a statement or
statements from the claimant requesting such advance or advances from time to
time; PROVIDED, HOWEVER, that if the General Corporation Law of the State of
Delaware requires,
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the advancement of such expenses incurred by a director or officer in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) prior to
the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of an undertaking by or on behalf of such director or
officer, to repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be indemnified
under this Article VI or otherwise.
C. The right to indemnification conferred in this Article VI and the right to
be paid by the Corporation the expenses incurred in connection with any such
proceeding in advance of its final disposition conferred in this Article VI
each shall be a contract right.
SECTION 6.2. PROCEDURE TO OBTAIN INDEMNIFICATION.
A. To obtain indemnification under this Article VI, a claimant shall submit to
the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and
is reasonably necessary to determine whether and to what extent the claimant
is entitled to indemnification. Upon written request by a claimant for
indemnification pursuant to the first sentence of this Section 6.2.A., a
determination, if required by applicable law, with respect to the claimant's
entitlement thereto shall be made as follows: (1) if requested by the
claimant, by Independent Counsel (as hereinafter defined) or (2) if no
request is made by the claimant for a determination by Independent Counsel,
(a) by the Board of Directors by a majority vote of a quorum consisting of
Disinterested Directors (as hereinafter defined) or (b) if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable
or, even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the claimant, or (c) if a quorum of Disinterested
Directors so directs, by the stockholders of the Corporation. In the event
the determination of entitlement to indemnification is to be made by
Independent Counsel at the request of the claimant, the Independent Counsel
shall be selected by the Board of Directors unless there shall have occurred
within six years prior to the date of the commencement of the action, suit,
or proceeding for which indemnification is claimed a "Change of Control" as
defined in the Corporation's 1997 Stock Incentive Plan, in which case the
Independent Counsel shall be selected by the claimant unless the claimant
shall request that such selection be made by the Board of Directors. If it
is so determined that the claimant is entitled to indemnification, payment to
the claimant shall be made within 10 days after such determination.
B. If a claim under Section 6.1 of this Article VI is not paid in full by the
Corporation within 30 days after a written claim pursuant to Section 6.2.A.
of this Article VI has been received by the Corporation or, in the case of a
claim pursuant to Section 6.1.B., within the 20-day period provided therein,
the claimant may at any time thereafter bring suit against the Corporation to
recover the unpaid amount of the claim and, if successful in whole or in
part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than
an action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that
the claimant has not met the standard of conduct which makes it permissible
under the General Corporation Law of the State of Delaware for the
Corporation to indemnify the claimant for the amount of the claims, but the
burden of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its Board of Directors, Independent
Counsel, or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of
conduct set forth in the General Corporation Law of the State of Delaware,
nor an actual determination by the Corporation (including its Board of
Directors, Independent Counsel, or stockholders) that the claimant has not
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met such applicable standard of conduct, shall be a defense to the action or
create a presumption that the claimant has not met the applicable standard of
conduct.
C. If a determination shall have been made pursuant to Section 6.2.A. of this
Article VI that the claimant is entitled to indemnification, the Corporation
shall be bound by such determination in any judicial proceeding commenced
pursuant to Section 6.2.B. of this Article VI.
D. The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to Section 6.2.B. of this Article VI that the
procedures and presumptions of this Article VI are not valid, binding, and
enforceable and shall stipulate in such proceeding that the Corporation is
bound by all the provisions of this Article VI.
SECTION 6.3. NO DIMINUTION OF RIGHTS.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article VI shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors, or otherwise. No repeal or modification of this Article VI shall
in any way diminish or adversely affect the rights of any director, officer,
employee, or agent of the Corporation hereunder in respect of any occurrence
of matter arising prior to any such repeal or modification.
SECTION 6.4. INSURANCE.
The Corporation may maintain insurance, at its expense, to protect itself and
any director, officer, employee, or agent of the Corporation or any person
serving at the request of the Corporation as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, or other
enterprise against any expense, liability, or loss, whether or not the
Corporation would have the power to indemnify such person against such
expense, liability, or loss under the General Corporation Law of the State of
Delaware. To the extent that the Corporation maintains any policy or policies
providing such insurance, each such director or officer, and each such agent
or employee to which rights to indemnification have been granted as provided
in Section 6.5 of this Article VI, shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the
coverage thereunder for any such director, officer, employee, or agent.
SECTION 6.5. DISCRETIONARY INDEMNIFICATION.
The Corporation may, to the extent authorized from time to time by the Board
of Directors, grant rights to indemnification, and rights to be paid by the
Corporation and the expenses incurred in defending any proceeding in advance
of its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article VI with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
SECTION 6.6. ENFORCEABILITY.
If any provision or provisions of this Article VI shall be held to be
invalid, illegal, or unenforceable for any reason whatsoever: (a) the
validity, legality, and enforceability of the remaining provisions of this
Article VI (including, without limitation, each portion of any section of
this Article VI containing any such provision held to be invalid, illegal, or
unenforceable, that is not itself held to be invalid, illegal, or
unenforceable) shall not in any way be affected or impaired thereby; and (b)
to the fullest extent possible, the provisions of this Article VI (including,
without limitation, each such portion of any section of this Article VI
containing any such provision held to be invalid, illegal, or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal, or unenforceable.
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SECTION 6.7. CERTAIN DEFINITIONS.
For purposes of this Article VI:
(a) "Disinterested Director" means a director of the Corporation who is not
and was not a party to the matter in respect of which indemnification is
sought by the claimant.
(b) "Independent Counsel" means a law firm that is nationally recognized for
its experience in matters of Delaware corporation law and shall not include
any person who, under the applicable standards of professional conduct then
prevailing, would have a conflict of interest in representing either the
Corporation or the claimant in an action to determine the claimant's rights
under this Article VI.
SECTION 6.8. NOTICES.
Any notice, request, or other communication required or permitted to be given
to the Corporation under this Article VI shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, electronic mail,
overnight mail or courier service, or certified or registered mail, postage
prepaid, return receipt requested, to the Secretary of the Corporation.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. FISCAL YEAR.
The fiscal year of the Corporation shall begin on the first day of January and
end on the thirty-first day of December of each year.
SECTION 7.2. DIVIDENDS.
The Board of Directors may from time to time declare, and the Corporation may
pay, dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law and the Certificate of Incorporation.
SECTION 7.3. SEAL.
The corporate seal shall have inscribed thereon the words "Corporate Seal,"
the year of incorporation and around the margin thereof the words "UNOVA,
Inc. -Delaware."
SECTION 7.4. WAIVER OF NOTICE.
Whenever any notice is required to be given to any stockholder or director of
the Corporation under the provisions of the General Corporation Law of the
State of Delaware or these By-Laws, a waiver thereof in writing, signed by
the person or persons entitled to such notice, whether before or after the
time stated therein, shall be deemed equivalent to the giving of such notice.
Neither the business to be transacted at, nor the purpose of, any annual or
special meeting of the stockholders or the Board of Directors or committee
thereof need be specified in any waiver of notice of such meeting.
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SECTION 7.5. AUDITS.
The accounts, books, and records of the Corporation shall be audited upon the
conclusion of each fiscal year by an independent certified public accountant
selected by the Board of Directors, and it shall be the duty of the Board of
Directors to cause such audit to be done annually.
SECTION 7.6. RESIGNATIONS.
Any director of any officer, whether elected or appointed, may resign at any
time by giving written notice of such resignation to the Chairman of the
Board, the President, if any, or the Secretary, and such resignation shall be
deemed to be effective as of the close of business on the date said notice is
received by the Chairman of the Board, the President, if any, or the
Secretary, or at such later time as is specified therein. No formal action
shall be required of the Board of Directors or the stockholders to make any
such resignation effective.
SECTION 7.7. PROXIES.
Unless otherwise provided by resolution adopted by the Board of Directors,
the Chairman of the Board, the President, if any, or any Vice President may
from time to time appoint an attorney or attorneys or agent or agents of the
Corporation, in the name and on behalf of the Corporation, to cast the votes
which the Corporation may be entitled to cast as the holder of stock or other
securities in any other corporation, any of whose stock or other 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, in the
name of the Corporation as such holder, to any action by 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 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 or she may deem necessary or proper in the premises.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. AMENDMENTS.
These By-Laws may be altered, amended, or repealed at any meeting of the
Board of Directors or of the stockholders, provided notice of the proposed
change was given in the notice of the meeting and, in the case of a meeting
of the Board of Directors, in a notice given not less than two days prior to
the meeting; provided, however, that, in the case of amendments by
stockholders, notwithstanding any other provisions of these By-Laws or any
provision of law which might otherwise permit a lesser vote or no vote, but
in addition to any affirmative vote of the holders of any particular class or
series of the capital stock of the Corporation required by law, the
Certificate of Incorporation or these By-Laws, the affirmative vote of the
holders of at least 80 percent of the voting power of all the then
outstanding shares of the Voting Stock, voting together as a single class,
shall be required to alter, amend, or repeal any provision of these By-Laws.
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