AMENDED AND RESTATED BY LAWS
OF
ANDERSON INDUSTRIES, INC.
A Delaware Corporation
ARTICLE I
Offices
Section 1. REGISTERED OFFICE. The registered office of the
Corporation in the State of Delaware shall be located at the Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle.
The name of the Corporation's registered agent at such address shall be The
Corporation Trust Company. The registered office and/or registered agent of
the Corporation may be changed from time to time by action of the Board of
Directors.
Section 2. OTHER OFFICES. The Corporation may also have offices at
such other places, both within and without the State of Delaware, as the
Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
Shareholders' Meetings
Section 1. ANNUAL MEETING. The annual meeting of shareholders shall
be within one hundred twenty (120) days after the close of the immediately
preceding fiscal year of the corporation and at the time and place as the
Board of Directors shall fix, for the purpose of electing directors and
transacting such other business as may properly come before the meeting. Any
annual meeting not held on the designated day may be held on any day
thereafter to which it may be adjourned.
Section 2. SPECIAL SHAREHOLDERS' MEETINGS. Special meetings of
shareholders may be called by the President or the Board of Directors. The
President shall call a special shareholders' meeting whenever shareholders
owning a majority of the issued and outstanding shares of the Corporation's
capital stock entitled to vote at the special meeting shall so request in
writing.
Section 3. PLACE OF MEETING. The Board of Directors may designate any
place either within or without Delaware as the meeting place for any
shareholders' meeting called by the Board of Directors. If no designation is
made or if some person other than the Board calls a special meeting, the
meeting shall be held at the Corporation's chief executive offices.
Section 4. NOTICE OF MEETINGS; WAIVER. Written notice of the time,
place and purposes of a shareholders' meeting shall be given not less than ten
(10) nor more than sixty (60) days before the meeting date, either personally
or by mail, to each shareholder of record entitled
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to vote at the meeting. If mailed, the notice shall be deemed to be given
when deposited in the United States mail, postage prepaid, addressed to the
shareholder at his or her address as it appears on the Corporation's stock
transfer books. Waiver of notice of a meeting of the shareholders may be made
in writing either before or after the holding thereof. Attendance of a person
at a meeting of shareholders shall constitute a waiver of notice of such
meeting, except when the shareholder attends for the purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the
meeting is not legally called or convened.
Section 5. QUORUM. At all shareholders' meetings, except where
otherwise provided by law, the holders of a majority of the outstanding
shares entitled to vote, being present in person or by proxy, shall
constitute a quorum for all purposes. The shareholders present in person or
by proxy at the meeting may continue to do business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum.
Section 6. VOTING. Each outstanding share of capital stock is
entitled to one vote on each matter submitted to a vote, except as otherwise
provided in the Certificate of Incorporation or under law. A vote may be cast
either orally or in writing, at the discretion of the chairperson of the
meeting.
Section 7. ADJOURNMENTS. Any annual or special shareholders' meeting,
whether or not a quorum is present, may be adjourned from time to time by a
majority vote of the shares present in person or by proxy. Unless the Board
of Directors fixes a new record date for the adjourned meeting or the
adjournment is for less than thirty days, it is not necessary to give notice
of the adjourned meeting if the date, time and place to which the meeting is
adjourned are announced at the meeting at which the adjournment is taken and
only such business is transacted at the adjourned meeting as might have been
transacted at the original meeting. If the adjournment is for more than
thirty days, or if after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 8. ACTION OF SHAREHOLDERS WITHOUT A MEETING. Except as
otherwise provided by law, any action required or permitted to be taken at a
shareholders' meeting may be taken without a meeting, without prior notice
and without a vote, if a consent in writing, setting forth the action so
taken, shall be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or
take such action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the corporate action
without a meeting shall be given to those stockholders who have not consented
in writing. The consent has the same effect as a shareholders' vote for all
purposes.
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ARTICLE III
Directors
Section 1. NUMBER AND TERM OF OFFICE. The number of directors of the
Corporation shall be not less than two (2) and not more than seven (7), the
number to be determined initially by the incorporator and thereafter by the
Board of Directors or the shareholders. All directors shall be elected at the
annual meeting of shareholders and hold office until their respective
successors are elected and qualified, or until their resignation or removal.
Section 2. REMOVAL; RESIGNATION. A director of the Corporation may be
removed from office for any reason at a special meeting of the shareholders
called for that purpose by the vote of the holders of a majority of the
capital stock then outstanding and entitled to vote at an election of
directors. A director may resign at any time by giving written notice to the
President or the Secretary. Unless otherwise specified therein, such
resignation shall take effect upon receipt thereof.
Section 3. ANNUAL AND REGULAR MEETINGS. The annual meeting of the
Board of Directors shall be held on the date of the Corporation's annual
shareholders meeting. Regular meetings of the Board of Directors may be held
without notice at such time and place as may be fixed by resolution of the
Board.
Section 4. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be held whenever called by the President or by a majority of
the Board of Directors. Notice thereof shall be given personally or by
telephone, mail, facsimile, or similar means of communication to the last
known address of each director at least one (1) day before such meeting.
Neither the business to be transacted at, nor the purpose of, a special
meeting need be specified in the notice of the meeting.
Section 5. QUORUM AND VOTING. A majority of the Directors then in
office shall constitute a quorum for transacting business, unless otherwise
provided by law or the Certificate of Incorporation. A majority of Directors
present at any regular or special meeting, although less than a quorum, may
adjourn the meeting from time to time, without notice. The majority vote of
members present at a meeting at which a quorum is present constitutes the
action of the Board of Directors, unless the vote of a larger number is
required by law, the Certificate of Incorporation, or the Bylaws.
Section 6. COMPENSATION. A director as such shall not receive any
stated salary for his or her services, but by resolution of the Board of
Directors a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board of Directors.
Nothing herein shall be construed to preclude a director from serving the
Corporation in any other capacity and receiving compensation therefor.
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Section 7. ACTION OF DIRECTORS WITHOUT A MEETING. Except as otherwise
provided by law, any action required or permitted to be taken at any meeting
of the Board of Directors may be taken without a meeting if all members of
the Board of Directors consent thereto in writing and the writing or writings
are filed with the minutes of proceedings of the Board of Directors.
ARTICLE IV
Officers
Section 1. NUMBER. The officers of the Corporation shall be a
President, a Secretary, and a Treasurer. The Board of Directors may also
elect a Chairperson of the Board, one or more Vice Presidents (one or more of
whom may be designated as Senior Vice President or Executive Vice President),
a Controller and one or more Assistant Secretaries, Assistant Treasurers, and
Assistant Controllers. The Board of Directors shall have power to create such
other offices as it may from time to time deem expedient.
Section 2. ELECTION AND TERM OF OFFICE. The officers shall be elected
annually by the Board of Directors at its annual meeting. If the officers are
not elected at this meeting, they shall be elected as soon thereafter as
convenient. Each officer shall hold office until his or her successor shall
have been duly elected and qualified or until his or her earlier death,
resignation or removal.
Section 3. REMOVAL; RESIGNATION; VACANCIES. Any officer elected or
appointed by the Board may be removed by the Board of Directors at any time
with or without cause. Any officer may resign at any time by giving written
notice to the Board of Directors, the President or the Secretary. Unless
otherwise specified, such resignation shall take effect upon receipt thereof.
Vacancies among officers of the Corporation during the year may be filled by
the Board of Directors for the unexpired portion of the term.
Section 4. PRESIDENT. The President shall be the chief executive
officer of the Corporation. Subject to the direction of the Board of
Directors, the President shall have general supervision of the Corporation's
business, departments, officers, and employees, and shall prescribe duties of
other officers and employees insofar as they are not specified by the Bylaws
or by the Board of Directors. The President shall act as chairperson and
preside at all meetings of the shareholders and Board of Directors, unless
another chairperson is elected by the Board of Directors for such meeting(s).
Section 5. VICE PRESIDENTS. Any Vice Presidents shall perform such
duties and be vested with such powers as the Board of Directors or the
President may prescribe.
Section 6. SECRETARY. The Secretary shall keep a record in proper
books maintained for that purpose of all proceedings of the Board of
Directors and the shareholders. The Secretary shall keep all other records
and shall perform all other duties as the Board of Directors or the
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President shall designate. The Secretary shall give all notices required by
law, the Certificate of Incorporation, the Bylaws, or the resolutions of the
Board of Directors. The Secretary shall in general perform all the duties
appurtenant to the office of Secretary, subject to the control of the Board
of Directors and the President.
Section 7. TREASURER. The Treasurer shall be responsible for all
funds and securities of the Corporation and shall render such accounts and
present such statements to the Board of Directors and the President as may be
required of the Treasurer. The Treasurer shall deposit all the Corporation's
funds with such depositories as the Board of Directors may designate. The
Treasurer shall in general perform all duties incident to the position of
Treasurer, subject to the control of the Board of Directors and the
President. The Treasurer shall pay out money as the business may require upon
the order of the properly constituted officer or officers of the Corporation,
taking proper vouchers therefor; provided, however, that the Board of
Directors shall have the power by resolution to delegate any of the duties
of the Treasurer to other officers, and to provide by what officers or
employees, if any, various bills, notes, checks, vouchers, orders or other
instruments shall be countersigned.
Section 8. OTHER OFFICERS. Other officers appointed by the Board of
Directors shall exercise those powers and perform those duties as may be
delegated to them by the Board of Directors or the President.
Section 9. ADDITIONAL DUTIES AND AUTHORITIES. The officers shall have
authority to execute on the Corporation's behalf any and all contracts,
agreements, bonds, deeds, mortgages, leases or other obligations of the
Corporation arising in its regular course of business other than where the
Corporation's Board of Directors designate one or more specific officers or
agents to act on the Corporation's behalf. All documents, instruments and
writings of any nature not arising in its regular course of business shall be
executed and delivered by the Corporation's officer or officers and in such
manner as the Board of Directors may, from time to time, determine.
ARTICLE V
Committees
The Board of Directors may establish such committees as it may deem
necessary or desirable to conduct the Corporation's business. Any committee
created shall have the members, duties, powers, and authority as the Board of
Directors shall specify.
ARTICLE VI
Capital Stock
Section 1. CERTIFICATES. The interest of the Corporation's
shareholders shall be
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evidenced by stock certificates, certifying the number of shares represented
thereby and in such form not inconsistent with law and the Certificate of
Incorporation as the Board of Directors may from time to time prescribe. The
Board of Directors may authorize that some or all of the Corporation's shares
shall be issued without certificates in the manner prescribed by law.
The stock certificates shall be signed by the President, or a Vice
President, and by the Secretary or the Treasurer. The Corporation's seal may
be affixed to the certificates, and may be either printed or manually
affixed. The officers' signatures may be facsimiles. If any officer who has
signed or whose facsimile signature has been placed upon any certificate
ceases to hold that office before the certificate is issued, the Corporation
may issue the certificate with the same effect as if he or she held that
office at its issuance.
All certificates of stock surrendered to the Corporation for transfer
shall be canceled and, except in the case of lost or destroyed certificates
as provided below, no new certificate shall be issued until the former
certificate or certificates for the shares represented thereby shall have
been surrendered and canceled.
Section 2. LOST CERTIFICATES. When a stock or other certificate
previously issued is alleged to have been lost or destroyed, a replacement
certificate may be issued upon such terms and indemnity to the Corporation as
the Board of Directors or the President may prescribe.
Section 3. TRANSFER OF SHARES. Transfer of the Corporation's stock
shall be made only on the stock transfer books, and the Corporation may
decline to recognize the holder of any certificate as a shareholder until
the shares represented by such certificate are transferred into his or her
name on the Corporation's stock transfer books. The Corporation shall be
entitled to treat the record holder of any shares as the absolute owner
thereof, and shall not be bound to recognize any equitable or other claim to
or interest in those shares on the part of any other person, whether or not
it has express or other notice thereof, except as otherwise provided by law.
Section 4. FIXING RECORD DATES. For the purpose of determining
shareholders entitled to notice of and to vote at a shareholders' meeting or
any adjournment thereof, or for any other purpose, the Board of Directors may
fix in advance a date as the record date. The date shall not be more than
sixty (60) nor less than ten (10) days before the date of the meeting, nor
more than sixty (60) days before any other action.
ARTICLE VII
Miscellaneous
Section 1. SEAL. The Corporation's seal shall consist of the
Corporation's name and state of incorporation around the periphery of a
circle, with the words "Seal" or "Corporate Seal" within the circle.
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Section 2. FISCAL YEAR. The Corporation's fiscal year shall be fixed
by resolution of the Board of Directors.
Section 3. INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES, AND
AGENTS. (a) The Corporation shall indemnify and hold harmless against all
expense, liability and loss (including attorneys' fees actually and
reasonably incurred in connection with a proceeding as defined below) any
person who was or is a party, or is threatened to be made a party, to or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a director or
officer of the Corporation, or is or was serving another organization or
entity (whether for profit or not) at the Corporation's request as a
director, officer, employee, fiduciary or agent of such organization or
entity. Such indemnification shall be to the fullest extent, and shall be
determined in such manner, as now or hereafter permitted by law. The
indemnification shall continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of the person; provided, however, that, except as provided in
Section 3(c) hereof, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding initiated by such person only
if such proceeding was authorized by the Board of Directors of the
Corporation. The Corporation may, by action of its Board of Directors,
indemnify its employees and agents to the same extent as the indemnification
of directors and officers.
(b) Notwithstanding the foregoing, the indemnification and
advancement of expenses provided by or granted under the Delaware Corporation
Law shall not be considered exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under the
Certificate of Incorporation, Bylaws, insurance, or a contractual agreement.
(c) Any indemnification of a director or officer of the Corporation
under Section 3(a) of this Article VI or advance of expenses under Section
3(d) of this Article VI shall be made promptly, and in any event within 30
days, upon written request of the director or officer. If a determination by
the Corporation that the director or officer is entitled to indemnification
pursuant to this Article VI, Section 3 is required, and the Corporation fails
to respond within sixty days to a written request for indemnity, the
Corporation shall be deemed to have approved the request. If the Corporation
denies a written request for indemnification or advancing of expenses, in
whole or in part, or if payment in full pursuant to such request is not made
within 30 days, the right to indemnification or advances as granted by this
Article VI, Section 3 shall be enforceable by the director or officer in any
court of competent jurisdiction. Such person's costs and expenses incurred
in connection with successfully establishing his or her right to
indemnification, in whole or in part, in any such action shall also be
indemnified by the Corporation. 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, has been tendered to the Corporation) that the
claimant has not met the standards of conduct which make it permissible under
the General Corporation Law of the State of Delaware for the Corporation to
indemnify the claimant for the amount claimed, but
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the burden of such defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, independent legal
counsel, or its 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 legal counsel, or its stockholders) that the claimant has not 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.
(d) Expenses incurred by any person described in Section 3(a) of
this Article VI in defending a proceeding shall be paid by the Corporation in
advance of such proceeding's final disposition upon receipt of an undertaking
by or on behalf of the director or officer to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by
the Corporation. Such expenses incurred by other employees and agents may be so
paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
ARTICLE VII
Amendments
These Bylaws may be amended, altered or repealed and new Bylaws may be
adopted at any meeting of the shareholders by the affirmative vote of the
holders of a majority of the shares entitled to vote thereon, or by the Board
of Directors.
ARTICLE VIII
Scope of Bylaws
These Bylaws govern the regulation and management of the Corporation's
affairs to the extent they are consistent with applicable law and the
Certificate of Incorporation. To the extent of any inconsistency, applicable
law and the Certificate of Incorporation shall govern the Corporation's
affairs.
Dated: May 20, 1999
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