Exhibit 3.2.1
BY-LAWS
of
MCWHORTER TECHNOLOGIES, INC.
* * * * *
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICES IN DELAWARE. The registered office of
McWhorter Technologies, Inc. (hereinafter called the "Corporation") in the State
of Delaware shall be in the City of Wilmington, County of New Castle, and the
registered agent in charge thereof shall be The Corporation Trust Company.
SECTION 2. OTHER OFFICES. The Corporation may have such other offices
in such places, either within or 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
MEETINGS OF STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of stockholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held at such place within or without
the State of Delaware, and at such date and hour, as shall be designated by the
Board of Directors.
SECTION 2. SPECIAL MEETINGS. A special meeting of stockholders, for any
purpose or purposes, may be called at any time by any member of the Board of
Directors or by the President of the Corporation. Any such meeting shall be held
at such place within or without the State of Delaware, and at such date and
hour, as shall be designated in the notice of such meeting.
SECTION 3. NOTICE OF MEETING. Unless waived in writing by the
stockholder of record or unless such stockholder is represented thereat in
person or by proxy, each stockholder of record shall be given written notice of
each meeting of stockholders, which notice shall state the place, date and hour
of the meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Such notice shall be given at least ten days
before the date fixed for such meeting.
SECTION 4. QUORUM. At each meeting of stockholders, the holders of
record of a majority of the issued and outstanding stock of the Corporation
entitled to vote at such meeting, present in person or by proxy, shall
constitute a quorum for the transaction of business, except where otherwise
provided by law, the Certificate of Incorporation or these By-Laws. In the
absence of a quorum, any officer entitled to preside at, or act as secretary of,
such meeting shall have the power to adjourn the meeting from time to time until
a quorum shall be constituted. At any such adjourned meeting at which a quorum
shall be present any business may be transacted which might have been transacted
at the meeting as originally called, but only those stockholders entitled to
vote at the meeting as originally noticed shall be entitled to vote at any
adjournment or adjournments thereof.
SECTION 5. VOTING. Except as otherwise provided in the Certificate of
Incorporation, at every meeting of stockholders each holder of record of the
issued and outstanding stock of the Corporation entitled to vote thereat shall
be entitled to one vote, in person or by proxy, for each share of stock held by
such stockholder. Shares of capital stock of this Corporation belonging to the
Corporation directly or indirectly shall not be voted directly or indirectly. At
all meetings of stockholders, a quorum being present, all matters shall be
decided by majority vote of the shares of stock entitled to vote thereat, except
as otherwise required by the laws of the State of Delaware. Unless demanded by a
stockholder of the Corporation present in person or by proxy at any meeting of
stockholders and entitled to vote thereat or so directed by the chairman of the
meeting or required by the laws of the State of Delaware, the vote thereat on
any question need not be by ballot. On a vote by ballot, each ballot shall be
signed by the stockholder voting, or in his name by his proxy, if there be such
proxy, and shall state the number of shares voted by him and the number of votes
to which each share is entitled.
SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING RECORD DATE. The Board
of Directors shall have power to close the stock transfer books of the
Corporation for a period not exceeding sixty (60) days preceding the date of any
meeting of shareholders or the date for payment of any dividend or the date for
the allotment of rights or the date when any change or conversion or exchange of
capital stock shall go into effect; provided, however that in lieu of closing
the stock transfer books as aforesaid, the Board of Directors may fix in advance
a date not exceeding sixty (60) days preceding the date of any meeting of
shareholders or the date for the payment of any dividend or the date for the
allotment of rights or the date when any change or conversion or exchange of
capital stock shall go into effect as a record date for the determination of the
shareholders entitled to notice of and to vote at any such meeting, 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 such change, conversion or exchange of
capital stock, and in such case only such shareholders as shall be shareholders
of record on the date so fixed shall be entitled to such notice of and 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 stock on the books of the Corporation after
any such record date fixed as aforesaid.
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ARTICLE III
BOARD OF DIRECTORS
SECTION 1. GENERAL POWERS. The property, business and affairs of the
Corporation shall be managed by the Board of Directors.
SECTION 2. NUMBER AND TERM OF HOLDING OFFICE. The number of directors
which shall constitute the whole Board of Directors shall be such number not
fewer than one as shall from time to time be fixed by the Board of Directors.
Each of the directors of the Corporation shall hold office until the annual
meeting next after his election and until his successor shall be elected and
shall qualify or until his earlier death or resignation or removal in the manner
hereinafter provided.
SECTION 3. ORGANIZATION AND ORDER OF BUSINESS. At each meeting of the
Board of Directors any director chosen by a majority of the directors present
thereat shall act as chairman of the meeting and preside thereat. The Secretary
of the Corporation or, in the case of his absence, any person whom the chairman
shall appoint, shall acts secretary of such meeting and keep the minutes
thereof.
SECTION 4. RESIGNATIONS. Any director may resign at any time by giving
written notice of his resignation to the President or the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein or, if the time when it shall become effective shall not be specified
therein, it shall take effect when accepted by action of the Board of Directors.
Except as aforesaid, the acceptance of such resignation shall not be necessary
to make it effective.
SECTION 5. REMOVAL OF DIRECTORS. Any director may be removed, either
with or without cause, at any time by vote of a majority in interest of the
stockholders of the Corporation.
SECTION 6. VACANCIES. Any vacancy in the Board of Directors, arising
from death, resignation, removal, an increase in the number of directors or any
other cause, may be filled either by a majority vote of the remaining directors,
although less than a quorum, or by the stockholders of the Corporation at the
next annual meeting or any special meeting called for the purpose.
SECTION 7. PLEDGE OF MEETING. The Board of Directors may hold its
meetings at such place or places within or without the State of Delaware as the
Board may from time to time by resolution determine or as shall be designated in
the respective notices or waivers of notice thereof.
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SECTION 8. MEETINGS.
(A) ANNUAL MEETINGS. As soon as practicable after each annual
election of directors, the Board of Directors shall meet for the purpose of
organization and the transaction of other business.
(B) OTHER MEETINGS. Other meetings of the Board of Directors
shall be held at such times and places as the Board shall from time to time
determine or upon call by the President of the Corporation.
SECTION 9. NOTICE OF MEETING. The Secretary of the Corporation shall
give notice to each director of each meeting, including the time and place of
such meeting. Notice of each such meeting shall be mailed to each director,
addressed to him at his residence or usual place of business, at least three
days before the day on which such meeting is to be held, or shall be sent to him
by telegraph, cable, wireless or other form of recorded communication or be
delivered personally or by telephone not later than the day before the day on
which such meeting is to be held. Notice of any meeting shall not be required to
be given to any director who shall attend such meeting. A written waiver of
notice, signed by the person entitled thereto, whether before or after the time
stated therein, shall be deemed equivalent to adequate notice.
SECTION 10. QUORUM AND MANNER OF ACTING. Except as provided by law, the
Certificate of Incorporation or these By-Laws, a majority of the directors then
in office shall be necessary at any meeting of the Board of Directors in order
to constitute a quorum for the transaction of business at such meeting, and the
vote of a majority of those directors present at any such meeting at which a
quorum is present shall be necessary for the passage of any resolution or act of
the Board. In the absence of a quorum for any such meeting, a majority of the
directors present thereat may adjourn such meeting from time to time until a
quorum shall be present thereat. Notice of any adjourned meeting need not be
given.
SECTION 11. ACTION BY CONSENT. 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 written consent thereto is signed by all members
of the Board or of such committee, as the case may be, and such written consent
is filed with the minutes of the proceedings of the Board or such committee.
SECTION 12. MEETINGS BY TELEPHONE, ETC. Members of the Board of
Directors, or of any committee thereof, may participate in a meeting of the
Board, or of 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 participation in a meeting pursuant to this
Section shall constitute presence in person at such meeting.
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SECTION 13. COMPENSATION. Each director, in consideration of his
serving as such, shall be entitled to receive from the Corporation such amount
per annum of such fees for attendance at meetings of the Board of Directors or
of any committee thereof, or both, as the Board shall from time to time
determine. The Board may likewise provide that the Corporation shall reimburse
each director or member of a committee for any expenses incurred by him on
account of his attendance at any such meeting. Nothing contained in this Section
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
SECTION 14. COMMITTEES. The Board of Directors, by resolution passed by
a majority of the whole Board, may designate members of the Board to constitute
one or more committees, which shall in each case consist of such number of
directors, not fewer than two, and shall have and may exercise such powers as
the Board may by resolution determine and specify in the respective resolutions
appointing them. A majority of all the members of any such committee may fix its
rules of procedure, determine its action and fix the time and place, whether
within or without the State of Delaware, of its meetings and specify what notice
thereof, if any, shall be given, unless the Board shall otherwise by resolution
provide. The Board shall have power to change the members of any such committee
at any time, to fill vacancies therein and to discharge any such committee,
either with or without cause, at any time.
ARTICLE IV
OFFICERS
SECTION 1. NUMBER. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Treasurer and a Secretary. Each such
officer shall be elected by the Board of Directors at its initial organization
meeting and thereafter at its annual meeting of the Board and shall serve until
his successor is elected or until his earlier death or resignation or removal in
the manner hereinafter provided.
The Board may elect or appoint such other officers of the Corporation
(including one or more Assistant Treasurers and one or more Assistant
Secretaries) as it deems necessary who shall have such authority and shall
perform such duties as the Board may prescribe. If additional officers are
elected or appointed during the year, each of them shall hold office until the
next annual meeting of the Board at which officers are regularly elected or
appointed and until his successor is elected or appointed or until his earlier
death or resignation or removal in the manner hereinafter provided.
A vacancy in any office may be filled for the unexpired portion of the
term in the same manner as provided for election or appointment to such office.
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All officers and agents elected or appointed by the Board shall be
subject to removal at any time by the Board with or without cause.
Any officer may resign at any time by giving written notice to the
President or the Secretary of the Corporation, and such resignation shall take
effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, it shall take effect when accepted by
action of the Board. Except as aforesaid, the acceptance of such resignation
shall not be necessary to make it effective.
SECTION 2. THE PRESIDENT. The President of the Corporation, subject to
the direction of the board of Directors, shall be the chief executive officer of
Corporation, shall have general charge of the business and affairs of the
Corporation, shall have the direction of all other officers, agents and
employees and may assign such duties to the other officers of the Corporation as
he deems appropriate.
SECTION 3. VICE PRESIDENTS. Each Vice President shall have such powers
and perform such duties as the President or the Board of Directors may from time
to time prescribe and shall perform such other duties as may be prescribed by
these By-Laws. At the request of the President, or in case of his absence or
inability to act, any of the Vice Presidents shall perform the duties of the
President and, when so acting, shall have all the powers of, and be subject to
all the restrictions upon, the President.
SECTION 4. TREASURER. The Treasurer of the Corporation shall have
charge and custody of and be responsible for all funds and securities of the
Corporation and its books of account.
SECTION 5. SECRETARY. The Secretary of the Corporation shall keep the
records of all meetings of the stockholders and the Board of Directors. He shall
affix the seal of the Corporation to all deeds, contracts, bonds or other
instruments requiring the corporate seal when the same shall have been signed on
behalf of the Corporation by a duly authorized officer and shall be custodian of
all contracts, deeds, documents and all other indicia of title to properties
owned by the Corporation and of its other corporate records.
ARTICLE V
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
SECTION 1. EXECUTION OF DOCUMENTS. Any member of the Board of Directors
and any officer, employee or agent of the Corporation designated by the Board of
Directors shall have power to execute and deliver deeds, contracts, mortgages,
bonds, debentures, checks, drafts and other orders for the payment of money and
other documents for and in the name of the Corporation, and the Board of
Directors may authorize any such officer, employee or agent to
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delegate such power (including authority to redelegate) by written instrument to
other officers, employees or agents of the Corporation.
SECTION 2. DEPOSITS. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
or otherwise as the Board of Directors, the President or any other officer of
the Corporation to whom power in that respect shall have been delegated by the
Board shall select.
ARTICLE VI
BOOKS AND RECORDS
The books and records of the Corporation may be kept at such places
within or without the State of Delaware as the Board of Directors may from time
to time determine.
ARTICLE VII
SEAL
The Board may adopt a corporate seal, which shall be in the form of a
circle and shall bear the full name of the Corporation and the word "Delaware"
and representing the year of its incorporation.
ARTICLE VIII
INDEMNIFICATION
To the extent permitted by Section 145 of the General Corporation Law
of the State of Delaware, as now in effect and as from time to time amended, or
any successor provisions thereof, the Corporation shall indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative and whether or not such action is an action by or in the right
of the Corporation to procure a judgment in its favor, by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise.
ARTICLE IX
SHARES AND THEIR TRANSFER
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SECTION 1. CERTIFICATES OF STOCK. Every owner of stock of the
Corporation shall be entitled to have a certificate certifying the number of
shares owned by him or it in the Corporation and designating the class of stock
to which such shares belong, which shall otherwise be in such form as the Board
of Directors shall prescribe. Each such certificate shall be signed by the
President or a Vice President and the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary of the Corporation. In case any officer or
officers who shall have signed any such certificate or certificates shall cease
to be such officer or officers of the Corporation, whether because of death,
resignation, removal or otherwise, before such certificate or certificates shall
have been delivered by the Corporation, such certificate or certificates may
nevertheless be adopted by the Corporation and be issued and delivered as though
the person or persons who signed such certificate had not ceased to be such
officer or officers of the Corporation.
SECTION 2. RECORD. A record shall be kept of the name of the person,
firm or corporation owning the stock represented by each certificate for stock
of the Corporation issued, the number of shares represented by each such
certificate, and the date thereof, and, in the case of cancellation, the date of
cancellation. The person in whose name shares of stock stand on the books of the
Corporation shall be deemed the owner thereof for all purposes as regards the
Corporation.
SECTION 3. TRANSFER OF STOCK. Transfers of shares of the 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 power of attorney
duly executed and filed with the Secretary of the Corporation, and on the
surrender of the certificate or certificates for such shares properly endorsed.
SECTION 4. LOST, DESTROYED OR MUTILATED CERTIFICATE. In case of the
alleged loss or destruction or the mutilation of a certificate representing
stock of the Corporation, a new certificate may be issued in place thereof, in
the manner and upon such terms as the Board of Directors may prescribe.
ARTICLE X
CONSENT ORDER
SECTION 1. GENERAL PROVISIONS. Notwithstanding anything herein to the
contrary, the Corporation shall be bound by the terms and provisions of the
Final Order in THE MATTER OF THE VALSPAR CORPORATION AND MCWHORTER, INC., File
No. 931-0098 (1993) (the "Order"), until the Order is of no further force or
effect. In the event of any conflict or inconsistency between the other Articles
of these By-Laws, or any amendment thereto, and the Order, or any amendment
thereto, the Order shall govern. In addition, in the event of any conflict or
inconsistency between
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the other Articles of these By-Laws, or any amendment thereto, and this Article
X, this Article X shall govern.
SECTION 2. INTERIM BOARD OF DIRECTORS. The directors of this
Corporation, after the Acquisition (as defined in the Order) and prior to the
distribution of the Corporation's stock to the stockholders of Valspar, shall
consist of at least two non- Valspar directors, officers or employees and no
more than one Valspar director, officer, employee or agent, provided, however,
that such Valspar director, officer, employee or agent shall enter into a
confidentiality agreement prohibiting disclosure of confidential information
until the day after the divestitures required by the Order have been completed
and shall not be a person involved in Valspar's Coating Resins (as defined in
the Order) business. Such director who is also a Valspar director, officer,
employee or agent shall participate in matters that come before the
Corporation's board of directors for the limited purpose of considering a
capital investment or other transactions exceeding $500,000 and carrying out
Valspar's and the Corporation's responsibilities under the Order. Except as
permitted by the Order, such director shall not participate in any matter that
would involve a conflict of interest.
SECTION 3. RECORDS. Meetings of the board of directors of this
Corporation during the term of the Agreement to Hold Separate shall be
stenographically transcribed and the transcripts retained for two years after
the termination of such agreement.
SECTION 4. ELECTION OF DIRECTORS. Within seven days of the distribution
or other divestiture of the Corporation's stock by Valspar, any director of the
Corporation who is also a Valspar director, officer, employee or agent shall
resign from the Corporation's board, and the remaining directors of the
Corporation shall designate a new director or new directors in accordance with
the Order and these By-Laws who are not directors, officers, employees or agents
of Valspar. In addition, the Corporation shall, within twelve months of the
distribution or other divestiture of the Corporation stock by Valspar, call a
stockholders' meeting for the purpose of electing directors.
SECTION 5. OFFICERS AND DIRECTORS. Except as provided above, after
completion of the Acquisition (as defined in the Order), no officer, director or
employee of Valspar shall concurrently serve as an officer, director or employee
of this Corporation nor shall any officer, director or employee of this
Corporation serve concurrently as an officer, director or employee of Valspar
while the order is in force and effect.
ARTICLE XI
AMENDMENTS
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Except for Article X hereof which may be amended only to the extent
such amendment is consistent with the terms of the Order, or any amendment
thereto, these By-Laws, or any of them, may be altered, amended or repealed, or
new By-Laws may be made, by the stockholders entitled to vote thereon at any
annual or special meeting thereof or by the Board of Directors.
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