Exhibit 3.2
The following is the full text of the Amended & Restated By-Laws ("By-Laws") of
C&D Technologies, Inc. (the "Company").
AMENDED AND RESTATED
BY-LAWS
OF
C&D TECHNOLOGIES, INC.
(a Delaware corporation, the "Corporation")
------------------------
ARTICLE I
OFFICES
Section 1. OFFICES. The Corporation shall maintain its registered office
in the State of Delaware, which may but need not be the same as its place of
business. The Corporation may also have offices in such other places in the
United States or elsewhere as the Board of Directors may, from time to time,
appoint or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as properly may be conducted
at such meeting shall be held at such place, either within or without the State
of Delaware, and at such time and date as may be designated by the Board of
Directors and set forth in the notice of the meeting or in a duly executed
waiver thereof.
Section 2. SPECIAL MEETINGS. Special meetings of the stockholders for any
purpose may be called by the Board of Directors, the Chairman of the Board or
the President of the Corporation and shall be called by the President upon
written request of the holders of at least 40% of all of the issued and
outstanding stock of the Corporation entitled to vote. Notice of each special
meeting shall be given according to Section 3 of this Article II.
Section 3. NOTICE OF MEETINGS. Written notice of each meeting of the
stockholders of the Corporation, in which the place, date and time of the
meeting and, in the event of a special meeting, the purpose or purposes for
which it is called are set forth,
shall be mailed to or delivered to each stockholder of record entitled to vote
thereat. Such notice shall be given not less than ten days nor more than 60 days
before the date of any such meeting. Such notice shall state the purpose or
purposes of the proposed meeting. Business transacted at all special meetings
shall be confined to the objects stated in the notice thereof.
Section 4. QUORUM. At any meeting of the stockholders, the holders of a
majority of all of the issued and outstanding shares of stock of the Corporation
entitled to vote at the meeting, present in person or by proxy, shall constitute
a quorum for all purposes, except to the extent that the presence of a larger
number of stockholders may be required by law, by the Certificate of
Incorporation of the Corporation or by these By-laws.
Section 5. VOTING. Except as may be otherwise provided by law or by the
Certificate of Incorporation, at every meeting of the stockholders, every
stockholder entitled to vote thereat shall have the right to one vote for every
share having voting power standing in his name on the stock transfer books of
the Corporation on the record date fixed for the meeting. Upon the demand of any
stockholder entitled to vote at any meeting, the vote upon any question before
such meeting shall be by written ballot. All elections of directors shall be
decided by plurality vote. When a quorum exists at any meeting, the vote of the
holders of a majority of the shares having voting power present in person or by
proxy shall decide any matter brought before such meeting, unless a different
vote is otherwise required by these By-laws, the Corporation's Certificate of
Incorporation or law.
Section 6. VOTING LISTS. A complete list of the stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order, with the
address of each, and the number of shares held by each, shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at the
place where the meeting is to be held. The list shall also be produced and kept
at the time and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 7. INSPECTORS. In advance of any meeting of the stockholders, the
Corporation shall appoint inspectors of election, who need not be stockholders,
to act at such meeting or any adjournment, postponement or continuation thereof.
If no inspector of election is able to act at a meeting of stockholders, the
chairman of any such meeting shall make such appointment at the meeting. The
number of inspectors of election shall be one or three. No person who is a
candidate for office shall act as an inspector of election. If there are three
inspectors of election, the decision, act or certificate of a majority shall be
the decision, act or certificate of all.
Section 8. CHAIRMAN OF MEETINGS. The Chairman of the Board of Directors of
the Corporation shall preside at all meetings of stockholders and of the Board
of Directors, at which he is present. In the event of his absence or disability,
the Vice
Chairman, if any be elected, or, in the event of the absence or disability of
the Vice Chairman, the President of the Corporation shall preside at any such
meetings.
Section 9. ACTION WITHOUT A MEETING. Subject to the provisions of Section
11 of this Article II, unless otherwise provided by the Certificate of
Incorporation, any action required to be taken at any annual or special meeting
of stockholders, or any action which may be taken at any annual or special
meeting, 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 were present and voted. Prompt
notice of corporate action taken without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented in
writing.
Section 10. ADJOURNMENT. At any meeting of stockholders of the
Corporation, if less than a quorum shall be present, a majority of the
stockholders entitled to vote at the meeting, present in person or by proxy,
shall have the power to adjourn the meeting to another time, place and date
without notice other than by announcement at the meeting so adjourned. Any
business may be transacted at any adjourned meeting that could have been
transacted at the meeting originally noticed, but only those stockholders
entitled to vote at the meeting originally noticed shall be entitled to vote at
any adjourned meeting. If the adjournment is for more than 30 days from the date
of the meeting originally noticed, or if after the adjournment a new record
date, as provided for in Section 5 of Article V of these By-laws 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 adjourned meeting.
Section 11. STOCKHOLDER PROPOSALS.
(a) Stockholder Proposals Relating to Nominations for and Election of
Directors.
(i) Nominations by a stockholder of candidates for election to the
Board of Directors by stockholders at a meeting of stockholders or upon written
consent without a meeting may be made only if the stockholder complies with the
procedures set forth in this Section 11(a), and any candidate proposed by a
stockholder not nominated in accordance with such provisions shall not be
considered or acted upon for execution at such meeting of stockholders.
(ii) A proposal by a stockholder for the nomination of a candidate
for election by stockholders as a director at any meeting of stockholders at
which directors are to be elected or upon written consent without a meeting may
be made only by notice in writing, delivered in person or by first class United
States mail postage prepaid or by reputable overnight delivery service, to the
Board of Directors of the Corporation to the attention of the Secretary of the
Corporation at the principal office of the Corporation, within the time limits
specified herein.
(iii) In the case of an annual meeting of stockholders, any such
written proposal of nomination must be received by the Board of Directors not
less than 90 calendar days nor more than 120 calendar days before the first
anniversary of the date on which the Corporation first mailed its proxy
statement to stockholders for the annual meeting of stockholders in the
immediately preceding year; provided, however, that in the case of an annual
meeting of stockholders that is called for a date that is not within 30 calendar
days before or after the first anniversary date of the annual meeting of
stockholders in the immediately preceding year, any such written proposal of
nomination must be received by the Board of Directors not less than five
business days after the date the Corporation shall have mailed notice to its
stockholders that an annual meeting of stockholders will be held or shall have
issued a press release, filed a periodic report with the Securities and Exchange
Commission or otherwise publicly disseminated notice that an annual meeting of
stockholders will be held.
(iv) In the case of a special meeting of stockholders, any such
written proposal of nomination must be received by the Board of Directors not
less than five business days after the earlier of the date that the Corporation
shall have mailed notice to its stockholders that a special meeting of
stockholders will be held or shall have issued a press release, filed a periodic
report with the Securities and Exchange Commission or otherwise publicly
disseminated notice that a special meeting of stockholders will be held.
(v) In the case of stockholder action by written consent with
respect to the election by stockholders of a candidate as director, the
stockholder seeking to have the stockholders elect such candidate by written
consent shall, by written notice to the Board of Directors, set forth the
information prescribed in clause (vi) of this Section 11(a) and request the
Board of Directors to fix a record date for determining stockholders entitled to
consent to corporate action in writing without a meeting. The Board of Directors
shall promptly, but in no event later than the tenth day after the date on which
such notice is received, adopt a resolution fixing such record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which date shall not be
more than ten days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. If no record date is fixed by the
Board of Directors within such time period, such record date shall be determined
in accordance with the provisions of Section 213(b) of the Delaware General
Corporation Law, or any successor provision.
(vi) Such written proposal of nomination shall set forth: (A) the
name and address of the stockholder who intends to make the nomination (the
"Nominating Stockholder"), (B) the name, age, business address and, if known,
residence address of each person so proposed, (C) the principal occupation or
employment of each person so proposed for the past five years, (D) the number of
shares of capital stock of the Corporation beneficially owned within the meaning
of Securities and Exchange Commission Rule 13d-1 by each person so proposed and
the earliest date of acquisition of any such capital stock, (E) a description of
any arrangement or understanding between each person so proposed and the
stockholder(s) making such nomination with respect to such person's proposal for
nomination and election as a director and actions to be
proposed or taken by such person if elected a director, (F) the written consent
of each person so proposed to serve as a director if nominated and elected as a
director and (G) such other information regarding each such person as would be
required under the proxy solicitation rules of the Securities and Exchange
Commission if proxies were to be solicited for the election as a director of
each person so proposed.
(vii) If a written proposal of nomination submitted to the Board of
Directors fails, in the reasonable judgment of the Board of Directors or a
nominating committee established by it, to contain the information specified in
clause (vi) of this Section 11(a) or is otherwise deficient, the Board of
Directors shall, as promptly as is practicable under the circumstances, provide
written notice to the stockholder(s) making such nomination of such failure or
deficiency in the written proposal of nomination and such nominating stockholder
shall have five business days from receipt of such notice to submit a revised
written proposal of nomination that corrects such failure or deficiency in all
material respects.
(b) Stockholder Proposals Relating to Matters Other Than Nominations for
and Elections of Directors.
(i) A stockholder of the Corporation may bring a matter (other than
a nomination of a candidate for election as a director, which is covered by
Section 11(a)) (a "Stockholder Matter") before a meeting of stockholders or for
action by written consent without a meeting only if such Stockholder Matter is a
proper matter for stockholder action and such stockholder shall have provided
notice in writing, delivered in person or by first class United States mail
postage prepaid or by reputable overnight delivery service, to the Board of
Directors of the Corporation to the attention of the Secretary of the
Corporation at the principal office of the Corporation, within the time limits
specified in this Section 11(b); provided, however, that a proposal submitted by
a stockholder for inclusion in the Corporation's proxy statement for an annual
meeting that is appropriate for inclusion therein and otherwise complies with
the provisions of Rule 14a-8 under the Securities Exchange Act of 1934
(including timeliness) shall be deemed to have also been submitted on a timely
basis pursuant to this Section 11(b).
(ii) In the case of an annual meeting of stockholders, any such
written notice of a proposal of a Stockholder Matter must be received by the
Board of Directors not less than 90 calendar days nor more than 120 calendar
days before the first anniversary of the date on which the Corporation first
mailed its proxy statement to stockholders for the annual meeting of
stockholders in the immediately preceding year; provided, however, that in the
case of an annual meeting of stockholders that is called for a date which is not
within 30 calendar days before or after the first anniversary date of the annual
meeting of stockholders in the immediately preceding year, any such written
notice of a proposal of a Stockholder Matter must be received by the Board of
Directors not less than five business days after the date the Corporation shall
have mailed notice to its stockholders that an annual meeting of stockholders
will be held, issued a press release, filed a periodic report with the
Securities and Exchange Commission or otherwise publicly disseminated notice
that an annual meeting of stockholders will be held.
(iii) In the case of a special meeting of stockholders, any such
written notice of a proposal of a Stockholder Matter must be received by the
Board of Directors not less than five business days after the earlier of the
date the Corporation shall have mailed notice to its stockholders that a special
meeting of stockholders will be held, issued a press release, filed a periodic
report with the Securities and Exchange Commission or otherwise publicly
disseminated notice that a special meeting of stockholders will be held.
(iv) In the case of stockholder action by written consent, the
stockholder seeking to have the stockholders authorize or take corporate action
by written consent shall, by written notice to the Board of Directors, set forth
the written proposal and request the Board of Directors to fix a record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting. The Board of Directors shall promptly, but in no event later
than the tenth day after the date on which such notice is received, adopt a
resolution fixing such record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than ten days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. If no record date is fixed by the Board of Directors within such time
period, such record date shall be determined in accordance with the provisions
of Section 213(b) of the Delaware General Corporation Law, or any successor
provision.
(v) Such written notice of a proposal of a Stockholder Matter shall
set forth information regarding such Stockholder Matter equivalent to the
information regarding such Stockholder Matter that would be required under the
proxy solicitation rules of the Securities and Exchange Commission if proxies
were solicited for stockholder consideration of such Stockholder Matter at a
meeting of stockholders.
(vi) If a written notice of a proposal of a Stockholder Matter
submitted to the Board of Directors fails, in the reasonable judgment of the
Board of Directors, to contain the information specified in clause (v) hereof or
is otherwise deficient, the Board of Directors shall, as promptly as is
practicable under the circumstances, provide written notice to the stockholder
who submitted the written notice of presentation of a Stockholder Matter of such
failure or deficiency in the written notice of presentation of a Stockholder
Matter and such stockholder shall have five business days from receipt of such
notice to submit a revised written notice of presentation of a matter that
corrects such failure or deficiency in all material respects.
(vii) Only Stockholder Matters submitted in accordance with the
foregoing provisions of this Section 11(b) shall be eligible for presentation at
such meeting of stockholders or for action by written consent without a meeting,
and any Stockholder Matter not submitted to the Board of Directors in accordance
with such provisions shall not be considered or acted upon at such meeting of
stockholders or by written consent without a meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 1. POWERS. The property, business and affairs of the Corporation
shall be managed and controlled by its Board of Directors. The Board shall
exercise all of the powers of the Corporation except as are by law, the
Corporation's Certificate of Incorporation or these By-laws conferred upon or
reserved to the stockholders.
Section 2. NUMBER AND TERM. The number of directors shall be at least
three. Within the limits specified above, the number of directors shall be
designated from time to time by the Board. The Board of Directors shall be
elected by the stockholders at the annual meeting of stockholders, and each
director shall be elected to serve for the term of one year and until his
successor shall be elected and qualified or until his earlier death, resignation
or removal.
Section 3. RESIGNATIONS. Any director or member of a committee of the
Board may resign at any time. Such resignation shall be made in writing, and
shall take effect at the time specified therein, and if no time be specified, at
the time of its receipt by the President or Secretary. The acceptance of a
resignation shall not be necessary to make it effective.
Section 4. REMOVAL. Any director or the entire Board of Directors may be
removed either for or without cause at any time by the affirmative vote of the
holders of a majority of all the shares of stock outstanding and entitled to
vote for the election of directors at any annual or special meeting of the
stockholders called for that purpose. Vacancies thus created may be filled by a
majority vote of the directors then in office, although less than a quorum, or
by a sole remaining director.
Section 5. VACANCIES AND NEWLY CREATED DIRECTORSHIPS. Vacancies in the
office of any director or member of a committee of the Board of Directors and
newly created directorships may be filled by a majority vote of the remaining
directors in office, although less than a quorum or by a remaining sole
director. Any director so chosen shall hold office for the unexpired term of his
predecessor and until his successor shall be elected and qualified or until his
earlier death, resignation or removal. However, the directors may not fill the
vacancy created by removal of a director by electing the director so removed.
Section 6. MEETINGS. Regular meetings of the directors may be held without
notice at such places and times as shall be determined from time to time by
resolution of the directors. Special meetings of the board may be called by
Chairman of the Board, the President and shall be called by the Secretary on the
written request of any two directors with at least one day's notice to each
director. A special meeting shall be held at such place or places as may be
determined by the directors or as shall be stated in the notice of the meeting.
Section 7. QUORUM, VOTING AND ADJOURNMENT. The presence of at least a
majority of the total number of directors or of any committee of the Board shall
constitute
a quorum for the transaction of business at any meeting of the Board of
Directors or committee of the Board, as the case may be. At any meeting of the
Board or any committee of the Board, if less than a quorum be present, a
majority of the directors or committee members present may adjourn the meeting
from time to time until a quorum is present. No notice of such adjourned meeting
need be given other than the announcement at the meeting so adjourned. The vote
of a majority of the directors or committee members present at the meeting at
which a quorum is present shall be the act of the Board or any committee of the
Board as the case may be.
Section 8. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by a majority of the entire Board, designate one or more
committees, including but not limited to an Audit Committee, a Compensation
Committee and a Corporate Governance/Nominating Committee, each such committee
to consist of one or more of the directors of the Corporation. The Board may
designate one or more directors as alternate members of any committee, to
replace any absent or disqualified member at any meeting of the committee. Any
such committee, to the extent specified by the resolution of the Board, may have
and exercise the powers of the Board of Directors in the management of the
business and affairs of the Corporation and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to amending the
Certificate of Incorporation of the Corporation, adopting an agreement of merger
or consolidation, recommending to the stockholders the sale, lease or exchange
of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, or amending these By-laws; and, unless the enabling
resolution of the Board expressly so provides, no such committee shall have the
power or authority to declare a dividend or to authorize the issuance of stock
of the Corporation. All committees of the Board shall report their proceedings
to the Board when required.
Section 9. ACTION WITHOUT A MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee of the
Board may be taken without notice and without a meeting if all members of the
Board or committee, as the case may be, consent to the action in writing.
Members of the Board of Directors or of any committee of the Board, may
participate in a meeting of the Board or committee by means of a conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other. Participation in a meeting
pursuant to this section shall constitute presence in person at such meeting.
Section 10. COMPENSATION. The Board of Directors may from time to time, in
its discretion, fix the amounts which shall be payable to directors and to
members of any committee of the Board for attendance at the meetings of the
Board of Directors or of such committee and for services rendered to the
Corporation. Any director may serve the Corporation in any other capacity as an
officer, agent or otherwise, and receive compensation therefor.
Section 11. CORPORATE BOOKS. The books of the Corporation, except such as
are required by law to be kept within the state, may be maintained outside the
State of Delaware, at such places as the Board of Directors may from time to
time determine.
ARTICLE IV
OFFICERS
Section 1. OFFICERS. The officers of the Corporation shall be a Chairman
of the Board, a President, one or more Vice Presidents, a Treasurer and a
Secretary. In addition, the Board of Directors may elect a Vice Chairman of the
Board and additional Vice Presidents, including an Executive Vice President, one
or more Assistant Treasurers and one or more Assistant Secretaries. Each officer
of the Corporation shall hold office for such term, have such authority and
perform such duties as set forth in these By-Laws or as may be prescribed from
time to time by the Board of Directors. Any number of offices may be held by the
same person.
Section 2. OTHER OFFICERS AND AGENTS. The Board of Directors may appoint
such other officers and agents as it deems advisable, who shall hold their
office 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.
Section 3. CHAIRMAN. The Chairman of the Board of Directors must be a
director of the Corporation. The Chairman shall preside at all meetings of the
Board of Directors and of the stockholders and shall have such powers and
perform such other duties as from time to time may be assigned to him by the
Board of Directors.
Section 4. VICE CHAIRMAN. The Vice Chairman of the Board of Directors, if
any be elected, shall generally aid and assist the Chairman of the Board and
shall have such powers and shall perform such duties of the Chairman of the
Board, in the absence or disability of such officer. In addition, the Vice
Chairman of the Board shall have such powers and perform such other duties as
from time to time may be assigned to him by the Board of Directors.
Section 5. PRESIDENT. The President shall be the Chief Executive Officer
of the Corporation and shall, in connection with the performance of his duties,
report directly to the Board of Directors. He shall perform such other duties as
may be prescribed from time to time by the Board or these By-laws. In the
absence, disability or failure of the Chairman of the Board or Vice Chairman of
the Board, if any shall be elected, to act, or a vacancy in such offices, the
President shall preside at all meetings of the stockholders and of the Board of
Directors.
Section 6. VICE PRESIDENTS. Each Vice President (of whom one or more may
be designated an Executive Vice President) shall generally aid and assist the
President in such manner as the President shall direct. Each Vice President
shall have such powers and shall perform such duties as shall be assigned to him
by the President or the Board of Directors.
Section 7. TREASURER. The Treasurer shall have the custody of the
corporate funds, securities, evidences of indebtedness and other valuables of
the Corporation and shall keep full and accurate account of receipts and
disbursements in books belonging to the Corporation. He shall deposit all moneys
and other valuables in the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Directors. The Treasurer shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors or the President. He shall render to the President and Board of
Directors, upon their request, a report of the financial condition of the
Corporation. If required by the Board of Directors, he shall give the
Corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the board shall prescribe.
Section 8. SECRETARY. The Secretary will cause minutes of all meetings of
the stockholders and directors to be recorded and kept; cause all notices
required by these By-Laws or otherwise to be given properly and see that the
minute books, stock books, and other non-financial books of the Corporation are
kept properly. In addition, the Secretary shall have such powers and shall
perform such duties as shall be assigned to him by the Board of Directors.
Section 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Each Assistant
Treasurer and each Assistant Secretary, if any shall be elected, shall be vested
with all the powers and shall perform all the duties of the Treasurer and
Secretary, respectively, in the absence or disability of such officer, unless or
until the Board of Directors shall otherwise determine. In addition, Assistant
Treasurers and Assistant Secretaries shall have such powers and shall perform
such duties as shall be assigned to them by the Board of Directors.
Section 10. CORPORATE FUNDS AND CHECKS. The funds of the Corporation shall
be kept in such depositories as shall from time to time be prescribed by the
Board of Directors. All checks or other orders for the payment of money shall be
signed by such officers, employees or agents as may from time to time be
authorized by the Board of Directors, with such countersignature, if any, as may
be required by the Board of Directors.
Section 11. CONTRACTS AND OTHER DOCUMENTS. The Chairman of the Board, the
President, any Vice President or the Treasurer, or such other officer or
officers as may from time to time be authorized by the Board of Directors, shall
have the power to sign and execute on behalf of the Corporation deeds, bonds,
mortgages/ conveyances and contracts, and any and all other documents requiring
execution by the Corporation and shall cause the seal to be affixed to any
instrument requiring it and, when so affixed, the seal shall be attested by the
signature of the Secretary or the Treasurer or an Assistant Secretary or an
Assistant Treasurer.
Section 12. OWNERSHIP OF STOCK OF ANOTHER CORPORATION. The Chairman of the
Board, the President, any Vice President, the Treasurer, the Secretary, or such
other officer or person as shall be authorized by the Board of Directors, shall
have power and authority on behalf of the Corporation to attend and to vote at
any meeting of the stockholders of any corporation in which this Corporation may
hold stock; may
exercise on behalf of this Corporation any and all of the rights and powers
incident to the ownership of such stock at any such meeting; and shall have
power and authority to execute and deliver proxies and consents on behalf of
this Corporation in connection with the exercise by this Corporation of the
rights and powers incident to the ownership of such stock.
Section 13. DELEGATION OF DUTIES. The Board of Directors may delegate to
another officer or director, the powers or duties of any officer, in case of
such officer's absence, disability or refusal to exercise such powers or perform
such duties.
Section 14. RESIGNATION AND REMOVAL. Any officer of the Corporation may be
removed from office for or without cause at any time by the Board of Directors.
Any officer may resign at any time in the same manner prescribed for the
resignation of directors of the Corporation and as set forth in Section 3 of
Article III of these By-laws.
Section 15. VACANCIES. In case any office shall become vacant, the Board
of Directors shall have power to fill such vacancy.
ARTICLE V
STOCK
Section 1. CERTIFICATED AND UNCERTIFICATED SHARES.
(a) Shares of the Corporation's Common Stock may be certificated or
uncertificated, as permitted under Section 158 of the Delaware General
Corporation Law. Certificates representing shares of stock of the
Corporation will be in such form as is determined by the Board, subject to
applicable legal requirements. Each such certificate will be numbered and
its issuance recorded in the books of the Corporation, and such
certificate will exhibit the holder's name and the number of shares and
will be mechanically signed with a facsimile of the signature of the
President or a Vice President, and a facsimile of the signature of the
Secretary or an Assistant Secretary, and shall also be signed by, or bear
the facsimile signature of, a duly authorized officer or agent of any
properly designated transfer agent of the Corporation. Any or all of the
signatures and the seal of the Corporation, if any, upon such certificates
may be facsimiles, engraved, or printed. Such certificates may be issued
and delivered notwithstanding that the person whose facsimile signature
appears thereon may have ceased to be such officer at the time the
certificates are issued and delivered. The issuance of shares in
uncertificated form shall not affect shares already represented by a
certificate until the certificate is surrendered to the Corporation.
Except as expressly provided by law, there shall be no differences in the
rights and obligations of stockholders based on whether or not their
shares are represented by certificates. The Corporation shall issue to any
holder who so requests share certificates representing shares registered
in the holder's name. (b) Within a reasonable time after the issuance or
transfer of uncertificated shares, the Corporation shall send to the
registered owner thereof a written notice containing the information
required to be set forth or stated on stock certificates
pursuant to the Delaware General Corporation Law or a statement that the
Corporation will furnish without charge to each stockholder who so
requests the powers, designations, preferences and relative participating,
optional or other special rights of each class of stock or series thereof
and the qualifications, limitations or restrictions of such preferences
and/or rights."
Section 2. TRANSFER OF SHARES. Transfers of shares of capital stock of the
Corporation shall be made only on the stock record of the Corporation by the
holder of record thereof or by his or her attorney thereunto authorized by the
power of attorney duly executed and filed with the Secretary of the Corporation
or the transfer agent thereof, and (i) in the case of certificated shares, only
on surrender of the certificate or certificates representing such shares,
properly endorsed or accompanied by a duly executed stock transfer power, or
(ii) in the case of uncertificated shares, upon receipt of proper transfer
instructions from the registered owner of such uncertificated shares, or from a
duly authorized attorney or from an individual presenting proper evidence of
succession, assignment or authority to transfer the shares. The Board of
Directors may make such additional rules and regulations as it may deem
expedient concerning the issue and transfer of certificates representing shares
of capital stock of the Corporation.
Section 3. LOST CERTIFICATES. A new certificate of stock may be issued in
the place of any certificate previously issued by the Corporation, alleged to
have been lost, stolen, destroyed or mutilated, and the Board of Directors may,
in its discretion, require the owner of the lost, stolen, destroyed or mutilated
certificate, or his legal representatives, to give the Corporation a bond, in
such sum as it may direct, not exceeding double the value of the stock, to
indemnify the Corporation against any claim that may be made against it on
account of the alleged loss or mutilation of any such certificate, or the
issuance of any such new certificate. In lieu of issuing a new certificate, the
Board of Directors may direct that the certificate alleged to be lost, stolen or
destroyed be replaced by uncertificated shares pursuant to procedures consistent
with the foregoing provisions.
Section 4. STOCKHOLDERS OF RECORD. The Corporation shall be entitled to
treat the holder of record of any share or shares of stock as the holder
thereof, in fact, and shall not be bound to recognize any equitable or other
claim to or interest in such shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise expressly
provided by law.
Section 5. STOCKHOLDERS RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or, subject to the relevant provisions
of Section 11 of Article II, to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which shall
not be more than 60 nor less than ten days before the date of the holding
of such meeting or the date of the taking of any of the aforementioned actions,
nor more than 60 days prior to any other action. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 6. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may at any regular or special meeting, out
of funds legally available therefor, declare dividends upon the stock of the
Corporation as and when it deems appropriate. Before declaring any dividend
there may be set apart, out of any funds of the Corporation available for
dividends, such sum or sums as the Board of Directors from time to time in its
discretion deems proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board shall deem conducive to the interests of the Corporation.
ARTICLE VI
NOTICE AND WAIVER OF NOTICE
Section 1. NOTICE. Whenever notice is required to be given to any
director, committee member, officer, stockholder, employee or agent, whether
pursuant to law, the Certificate of Incorporation of the Corporation or these
By-laws, it shall not be construed to mean personal notice, but such notice may
be given, in the case of stockholders, in writing, by depositing the same in the
mail, postage prepaid, or by overnight carrier addressed to such stockholders at
his last known address as the same appears on the books of the Corporation, and,
in the case of directors, committee members, officers, employees and agents, by
telephone, or by mail, postage prepaid, or by prepaid telegram at his last known
address as the same appears on the books of the Corporation. All notices shall
be deemed to be given when mailed, telegraphed or telephoned.
Section 2. WAIVER OF NOTICE. Whenever any notice is required to be given
by law, the Certificate of Incorporation of the Corporation or these By-laws, a
written waiver of notice signed by the person entitled to notice, whether before
or after the time stated in the notice, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, unless prior to the end of the meeting the person objects to the
transaction of any business because the meeting is not lawfully noticed or
convened. Neither the business to be transacted at, nor the purpose of, any
meeting of the stockholders, directors, or members of a committee of the Board
need be specified in any written waiver of notice.
ARTICLE VII
AMENDMENT OF BY-LAWS
Section 1. AMENDMENTS. These By-laws may be altered, amended or repealed
(i) by the affirmative vote of the holders of a majority of all of the issued
and outstanding shares of stock of the Corporation entitled to vote thereon at
any annual or special meeting duly convened after notice to the stockholders of
that purpose or (ii) by a
majority vote of the members of the Board of Directors at any regular or special
meeting of the Board of Directors duly convened after notice to the Board of
Directors of that purpose, subject always to the power of the stockholders to
change such action of the Board of Directors by the vote of the stockholders
required in clause (i) of this Article VII.
ARTICLE VIII
INDEMNIFICATION
Section 1. INDEMNIFICATION GENERALLY. The Corporation shall indemnify each
person who was or is made a party to 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, including an action by
or in the right of the Corporation, (hereinafter a "Proceeding"), by reason of
the fact that such person is or was a director or officer, or had agreed to
serve as a director or officer, of the Corporation or is or was serving or has
agreed to serve at the request of the Corporation as a director, officer,
partner, trustee, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, including service with respect to employee
benefit plans, or by reason of any act alleged to have been taken or omitted in
such capacity, to the maximum extent authorized by the Delaware General
Corporation Law, 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 such law permitted
the Corporation to provide prior to such amendment), against all costs,
expenses, liabilities, and losses (including attorneys' fees, judgments, fines,
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred by such person or on such person's behalf in connection with
such Proceeding. The termination of any Proceeding by judgment, order,
settlement or conviction, or upon a plea of nolo contendre or its equivalent,
shall not, of itself, create a presumption that the person did not meet any
standard of conduct for indemnification imposed by the Delaware General
Corporation Law. Notwithstanding the foregoing: (a) except with respect to a
Proceeding to enforce a right to indemnification under this Article VIII, the
Corporation shall not be required by this Article VIII to indemnify any person
with respect to, or to advance expenses (including attorneys' fees) incurred by
such person in connection with, any Proceeding initiated by such person against
the Corporation, or any counterclaim, cross-claim, affirmative defense or
similar claim of the Corporation in connection with such Proceeding, unless the
Proceeding initiated by the person seeking indemnification was authorized by the
Board of Directors by a majority vote of the directors having no interest in
such Proceeding; and (b) in the event any insurance policy obtained by the
Corporation would provide coverage for any liability, cost or expense for which
indemnification or advancement of expenses is sought under this Article VIII,
the provisions of this Article VIII shall be modified to the extent necessary to
conform this Article VIII to the requirements of such insurance policy so as to
provide coverage to the fullest extent possible, including but not limited to
any requirements relating to incurring defense costs and retaining legal
counsel.
Section 2. INDEMNIFICATION FOR COSTS, CHARGES, AND EXPENSES FOR SUCCESSFUL
PARTY. Notwithstanding the other provisions of this Article VIII, to the extent
that a director or officer of the Corporation has been successful on the merits
or otherwise, including, without limitation, the dismissal of an action without
prejudice, in defense of any Proceeding referred to in Section 1, or in the
defense of any claim, issue or matter therein, such person shall be indemnified
against all costs, charges and expenses (including attorneys' fees) actually and
reasonably incurred by such person or on such person's behalf in connection
therewith.
Section 3. DETERMINATION OF RIGHT TO INDEMNIFICATION. Any indemnification
authorized under or in accordance with Section 1 or 2 of this Article VIII
(unless ordered by a court) shall be paid by the Corporation unless a
determination is made (a) by the Board of Directors by a majority vote of a
quorum consisting of directors who were not parties to the Proceeding, or (b) if
such a quorum is not obtainable, or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders, that indemnification of the director or
officer is not proper in the circumstances because such person has not met the
applicable standards of conduct set forth in the Delaware General Corporation
Law.
Section 4. ADVANCE OF COSTS, CHARGES AND EXPENSES. Costs, charges, and
expenses (including attorneys' fees) incurred by a person referred to in Section
1 of this Article VIII in defending a civil or criminal Proceeding (including
investigations by any government agency and all costs, charges and expenses
incurred in preparing for any threatened Proceeding) shall be paid by the
Corporation in advance of the final disposition of such Proceeding; provided,
however, that the payment of such costs, charges and expenses incurred by any
such person in advance of the final disposition of such Proceeding shall be made
only upon receipt of an undertaking by or on behalf of such person to repay all
amounts so advanced if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized in this Article
VIII. Notwithstanding the foregoing: (a) the Corporation shall not be required
to advance expenses (including attorneys' fees) to any person with respect to
any Proceeding brought by the Corporation against such person; (b) except with
respect to a Proceeding to enforce a right of indemnification under this Article
VIII, the Corporation shall not be required to advance expenses (including
attorneys' fees) to any person in connection with any Proceeding initiated by
such person against the Corporation or any counterclaim, cross-claim,
affirmative defense or similar claim of the Corporation in connection with such
Proceeding, unless the Proceeding initiated by the person seeking
indemnification was authorized by the Board of Directors by a majority vote of
the directors having no interest in such Proceeding; and (c) in the event any
insurance policy obtained by the Corporation would provide coverage for any
liability, cost or expense for which indemnification is sought, the provisions
of this Article VIII shall be modified to the extent necessary to conform this
Article VIII to the requirements of such insurance policy so as to provide
coverage to the fullest extent possible, including but not limited to any
requirements relating to incurring defense costs and retaining legal counsel. No
security shall be required for such undertaking and such undertaking shall be
accepted without reference to the recipient's financial ability to make
repayment. The Board of Directors may, in the manner set forth above, and
subject to the approval of such person,
authorize counsel selected by the Corporation to represent such person in any
Proceeding, whether or not the Corporation is a party to such Proceeding.
Section 5. PROCEDURE FOR INDEMNIFICATION. Any indemnification authorized
under Section 1 of this Article VIII or advance of costs, charges and expenses
authorized under Section 4 of this Article VIII shall be made promptly, and in
any event within 60 days, upon the written request of the director or officer
directed to the Secretary of the Corporation. The right to indemnification or
advances as granted by this Article VIII shall be enforceable by the director or
officer in any court of competent jurisdiction if the Corporation denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such person's costs and expenses incurred in connection with successfully
establishing such person's right to indemnification or advances, 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 the advance of costs, charges and expenses under Section 4 where the
required undertaking, if any, has been received by the Corporation) that the
claimant has not met the standard of conduct, if any, set forth in the Delaware
General Corporation Law, but, to the extent permitted by applicable law, the
burden of proving that such standard of conduct has not been met shall be on the
Corporation.
Section 6. CONTINUATION OF RIGHT OF INDEMNIFICATION. The indemnification
provided by this Article VIII shall not be deemed exclusive of any other rights
to which a person seeking indemnification may be entitled under any law (common
or statutory), agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as to action
in another capacity while holding office, and shall continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of the
estate, heirs, executors and administrators of such person. All rights to
indemnification under this Article VIII shall be deemed to be a contract between
the Corporation and each director and officer of the Corporation who serves or
served in such capacity at any time while this Article VIII is in effect. No
amendment or repeal of this Article VIII or of any relevant provisions of the
Delaware General Corporation Law or any other applicable laws shall adversely
affect or deny to any director or officer any rights to indemnification that
such person may have, or change or release any obligations of the Corporation
under this Article VIII with respect to any costs, charges, expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement that arise out
of a Proceeding based in whole or substantial part on any act, actual or
alleged, that takes place before or while this Article VIII is in effect. The
provisions of this Section 6 shall apply to any such Proceeding whenever
commenced, including any such Proceeding commenced after any amendment or repeal
of this Article VIII.
Section 7. DEFINITIONS. For purposes of this Article VIII:
"the Corporation" includes any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation or merger that, if its
separate existence continued, would have had power and authority to indemnify
its directors or officers, so that any person who is or was a director or
officer of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee, or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under the provisions
of this Article VIII with respect to the resulting or surviving corporation as
such person would have with respect to such constituent corporation if its
separate existence had continued;
"other enterprise" includes employee benefit plans, including but not
limited to any employee benefit plans of the Corporation;
service by a director or officer "at the request of the Corporation"
includes, but is not limited to, any service that imposes duties on, or involves
services by, a director or officer of the Corporation with respect to an
employee benefit plan, its participants or beneficiaries, including acting as a
fiduciary thereof;
"fines" shall include any penalties and any excise or similar taxes
assessed on a person with respect to an employee benefit plan;
a person who acted in good faith and in a manner he reasonably believed to
be in the interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the Corporation" as referred to under the applicable standards of
conduct set forth in the Delaware General Corporation Law; and
service by a director or officer as a partner, trustee, manager or member
of management or similar committee of a partnership, joint venture, trust or
limited liability company, or as a director, officer, manager, partner, trustee
or manager of an entity that is a partner, trustee, member or joint venturer,
shall be considered service as a director or officer of the partnership, joint
venture, trust, limited liability company or other enterprise.
Section 8. SAVING CLAUSE. If this Article VIII or any portion hereof shall
be invalidated on any ground by a court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and officer of the
Corporation as to costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any action, suit
or proceeding, whether civil, criminal, administrative or investigative,
including an action by or in the right of the Corporation, to the full extent
permitted by any applicable portion of this Article VIII that shall not have
been invalidated.
Section 9. OTHER INDEMNIFICATION. The right to indemnification and
advancement of expenses conferred on any person by this Article VIII shall not
limit the Corporation from providing any other indemnification permitted by law.
If authorized by the Board of Directors, the Corporation may indemnify and
advance expenses to any other person whom the Corporation has the power to
indemnify under the Delaware General Corporation Law to the fullest extent
permitted by such statute.
Section 10. INSURANCE. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director, officer,
employee, or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or claim, whether or not the
Corporation would have the power to indemnify such person under the Delaware
General Corporation Law.
ARTICLE IX
MISCELLANEOUS
Section 1. SEAL. The seal of the Corporation shall be circular in form and
shall have the name of the Corporation "C&D Technologies, Inc." on the
circumference and the words and numerals "Delaware 1985" in the center.
Section 2. FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
As amended on December 4, 2007.