Exhibit 3.2
BY-LAWS
of
WATTS INDUSTRIES, INC.
Amended and Restated as of April 21, 1992, amended as of May 11, 1999 and
July 24, 2002
ARTICLE I
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Stockholders
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Section 1. Annual Meeting. The annual meeting of stockholders shall be
held at the hour, date and place within or without the United States which is
fixed by the Board of Directors or the Chairman of the Board, which hour, date
and place may subsequently be changed at any time by vote of the Board of
Directors. If no annual meeting has been held for a period of thirteen months
after the Corporation's last annual meeting of stockholders, a special meeting
in lieu thereof may be held, and such special meeting shall have, for the
purposes of these By-laws or otherwise, all the force and effect of an annual
meeting. Any and all references hereafter in these By-laws to an annual meeting
or annual meetings also shall be deemed to refer to any special meeting(s) in
lieu thereof.
Section 2. Matters to be Considered at Annual Meeting. At an annual
meeting of stockholders, only such business shall be conducted, and only such
proposals shall be acted upon, as shall have been properly brought before the
annual meeting (a) by, or at the direction of, the Board of Directors or a
designated committee thereof or (b) by any holder of record (both as of the time
notice of such proposal is given by the stockholder as set forth below and as of
the record date for the annual meeting in question) of any shares of capital
stock of the Corporation entitled to vote at such annual meeting who complies
with the procedures set forth in this Section 2 (or, with respect to nominations
of candidates for election as Directors, as set forth in Section 3 of Article II
hereof). In addition to any other applicable requirements, for business to be
properly brought before an annual meeting by a holder of record of any shares of
capital stock entitled to vote at such annual meeting, the stockholder must have
given timely notice thereof in writing to the Secretary of the Corporation as
set forth in this Section 2 and such stockholder or his representative must be
present at the annual meeting. To be timely, a stockholder's notice must be
delivered to, or mailed to and received at, the principal executive offices of
the Corporation (a) not less than 75 days nor more than 120 days prior to the
anniversary date of the immediately preceding annual meeting of stockholders
(the "Anniversary Date") or (b) in the event that the annual meeting of
stockholders is called for a date more than 10 days prior to the Anniversary
Date, not later than the close of business on (i) the 20th day (or if that day
is not a business day of the Corporation, on the next succeeding business day)
following the first date on which the date of such meeting was publicly
disclosed or (ii) if such date of public disclosure occurs more than 75 days
prior to such scheduled date of such meeting, then the later of (1) the 20th day
(or if that day is not a business day for the Corporation, on the next
succeeding business day) following the first date of public disclosure or (2)
the 75th day prior to such scheduled date of such meeting (or if that day is not
a business day for the Corporation, on the next succeeding business day). Any
public disclosure of the scheduled date of the meeting made by the Corporation
by means of a press release, a report or other document filed with the
Securities and Exchange Commission, or a letter or report sent to stockholders
of record of the Corporation, shall be deemed to be sufficient public disclosure
of the date of such meeting for purposes of these By-laws.
A stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (a) a brief
description of the proposal desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the Corporation's stock transfer books, of the
stockholder proposing such business and of the beneficial owners (if any) of the
stock registered in such stockholder's name and the name and address of other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder's notice, (c) the class and number of shares of the
Corporation's capital stock which are held of record, beneficially owned or
represented by proxy by the stockholder and by any other stockholders known by
such stockholder to be supporting such proposal on the record date for the
annual meeting in question (if such date shall then have been made publicly
available) and on the date of such stockholder's notice, and (d) any material
interest of the stockholder in such proposal.
If the Board of Directors, or a designated committee thereof, determines
that any stockholder proposal was not timely made in accordance with the
provisions of this Section 2, or that the information provided in a
stockholder's notice does not satisfy the informational requirements of this
Section 2 in any material respect, then such proposal shall not be presented for
action at the annual meeting in question. If neither the Board of Directors nor
such committee makes a determination as to the validity of any stockholder
proposal, the presiding officer of the annual meeting shall determine and
declare at the annual meeting whether the stockholder proposal was made in
accordance with the terms of this Section 2. If the presiding officer determines
that a stockholder proposal was made in accordance with the terms of this
Section 2, he shall so declare at the annual meeting and ballots shall be
provided for use at the meeting with respect to any such proposal. If the
presiding officer determines that a stockholder proposal was not made in
accordance with the terms of this Section 2, he shall so declare at the annual
meeting and any such proposal shall not be acted upon at the annual meeting.
The provisions of this By-law shall not prevent the consideration and
approval or disapproval at the annual meeting of reports of officers, Directors
and committees of the Board of Directors, but in connection with such reports,
no new business shall be acted upon at such annual meeting unless stated, filed
and received as herein provided.
Notwithstanding the foregoing provisions of this By-law, a stockholder
shall also comply with all applicable requirements of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
thereunder with respect to the matters set forth in this By-law. Nothing in this
By-law shall be deemed to affect any rights of stockholders to request inclusion
of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under
the Exchange Act.
Section 3. Special Meetings. Except as otherwise required by law, special
meetings of the stockholders of the Corporation may be called only by the Board
of Directors pursuant to a resolution approved by the affirmative vote of a
majority of the Directors then in office or the Chairman of the Board.
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Section 4. Matters to be Considered at Special Meetings. Only those
matters set forth in the notice of the special meeting may be considered or
acted upon at a special meeting of stockholders of the Corporation, unless
otherwise provided by law.
Section 5. Notice of Meetings; Adjournments. A written notice of each
annual meeting of stockholders stating the place, date and hour of such annual
meeting shall be given by the Secretary (or other person authorized by these
By-laws or by law) not less than 10 days nor more than 60 days before the
meeting, to each stockholder entitled to vote thereat and to each stockholder
who, by law or under the Restated Certificate of Incorporation or under these
By-laws, is entitled to such notice, by delivering such notice to him or by
mailing it, postage prepaid, and addressed to such stockholder at the address of
such stockholder as it appears in the records of the Corporation. Such notice
shall be deemed to be delivered when hand delivered to such address or deposited
in the mail so addressed, with postage prepaid.
Notice of all special meetings of stockholders shall be given in the same
manner as provided for annual meetings of the stockholders, except that the
written notice of all special meetings shall state the purpose or purposes for
which the meeting has been called.
Notice of an annual or special meeting of stockholders need not be given
to a stockholder if a written waiver of notice is executed before or after such
meeting by such stockholder or such stockholder's authorized attorney, if
communication with such stockholder is unlawful, or if such stockholder attends
such meeting, unless such attendance was for the express purpose of objecting at
the beginning of the meeting to the transaction of any business because the
meeting was not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
stockholders need be specified in any written waiver of notice.
The Board of Directors may postpone and reschedule any previously
scheduled annual or special meeting of stockholders and any record date with
respect thereto, regardless of whether any notice or public disclosure with
respect to any such meeting has been sent or made pursuant to Section 2 of this
Article I or Section 3 of Article II hereof or otherwise. When any meeting is
convened, the presiding officer may adjourn the meeting if (a) no quorum is
present for the transaction of business, (b) the Board of Directors determines
that adjournment is necessary or appropriate to enable the stockholders to
consider fully information which the Board of Directors determines has not been
made sufficiently or timely available to stockholders, or (c) the Board of
Directors determines that adjournment is otherwise in the best interests of the
Corporation. When any annual or special meeting of stockholders is adjourned to
another hour, date or place, notice need not be given of the adjourned meeting
other than an announcement at the meeting at which the adjournment is taken of
the hour, date and place to which the meeting is adjourned; provided, however,
that if the adjournment is for more than 30 days, or if after the adjournment a
new record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote thereat
and each stockholder who, by law or under the Restated Certificate of
Incorporation or these By-laws, is entitled to such notice.
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Section 6. Quorum. At any annual or special meeting of stockholders, the
holders of a majority of the voting power of all classes of stock issued,
outstanding and entitled to vote at such meeting, represented in person or by
proxy, shall constitute a quorum at such meeting; but if less than a quorum is
present at such meeting, the holders of a majority of the voting power of all
classes of stock issued, outstanding and entitled to vote at such meeting that
are present in person or by proxy at such meeting or the presiding officer may
adjourn the meeting from time to time, and the meeting may be held as adjourned
without further notice, except as provided in Section 5 of this Article I. At
such adjourned meeting at which a quorum is present, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The stockholders present at a duly constituted meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Section 7. Voting and Proxies. The voting power of each share of capital
stock of the Corporation shall be as set forth in the Restated Certificate of
Incorporation, with a proportionate vote for each fraction of any share.
Stockholders may vote either in person or by written proxy, but no proxy shall
be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. Proxies shall be filed with the Secretary of the
meeting before being voted. Except as otherwise limited therein or as otherwise
provided by law, proxies shall entitle the persons authorized thereby to vote at
any adjournment of such meeting, but they shall not be valid after final
adjournment of such meeting. A proxy with respect to stock held in the name of
two or more persons shall be valid if executed by or on behalf of any one of
them unless at or prior to the exercise of such proxy the Corporation receives a
specific written notice to the contrary from any one of them. A proxy purporting
to be executed by or on behalf of a stockholder shall be deemed valid, and the
burden of proving invalidity shall rest on the challenger.
Section 8. Action at Meeting. When a quorum is present, any matter before
any annual or special meeting of stockholders shall be decided by vote of the
holders of all classes of stock present in person or by proxy representing a
majority of the votes of all classes of stock entitled to be cast at the
meeting, except where a larger vote is required by law, by the Restated
Certificate of Incorporation or by these By-laws. Any election by stockholders
shall be determined by a plurality of the votes of all classes of stock cast,
except where a larger vote is expressly required by law, by the Restated
Certificate of Incorporation or by these By-laws. The Corporation shall not
directly or indirectly vote any shares of its own stock; provided, however, that
the Corporation may vote shares which it holds in a fiduciary capacity to the
extent permitted by law.
Section 9. Action by Consent. Any action required or permitted by law to
be taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon
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were present and voted. Prompt notice of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing.
Section 10. Stockholder Lists. The Secretary (or the Corporation's
transfer agent or other person authorized by these By-laws or by law) shall
prepare and make, at least 10 days before every annual or special meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares of each class of stock registered in the
name of each stockholder. Such list 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 10 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 hour,
date and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 11. Presiding Officer. The Chairman of the Board, or in his
absence, the President, shall preside at all annual or special meetings of
stockholders and shall have the power, among other things, to adjourn such
meeting at any time and from time to time, subject to Sections 5 and 6 of this
Article I. The order of business and all other matters of procedure at any
meeting of the stockholders shall be determined by the presiding officer.
Section 12. Voting Procedures and Inspectors of Elections. The Corporation
shall, in advance of any meeting of stockholders, appoint one or more inspectors
to act at the meeting and make a written report thereof. The Corporation may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer shall appoint one or more inspectors to act
at the meeting. Any inspector may, but need not, be an officer, employee or
agent of the Corporation. Each inspector, before entering upon the discharge of
his duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his ability. The
inspectors shall perform such duties as are required by the Delaware General
Corporation Law, as amended from time to time, including the counting of all
votes and ballots. The inspectors may, with the approval of the presiding
officer, appoint or retain other persons or entities to assist the inspectors in
the performance of the duties of the inspectors. The presiding officer may
review all determinations made by the inspector(s), and in so doing the
presiding officer shall be entitled to exercise his sole judgment and discretion
and he shall not be bound by any determinations made by the inspector(s). All
determinations by the inspector(s) and, if applicable, the presiding officer
shall be subject to further review by any court of competent jurisdiction.
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ARTICLE II
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Directors
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Section 1. Powers. All the power of the Corporation shall be exercised by
or under the direction of the Board of Directors except as otherwise provided by
the Restated Certificate of Incorporation or as required by law. In the event of
a vacancy in the Board of Directors, the remaining Directors, except as
otherwise provided by law, may exercise the powers of the full Board until the
vacancy is filled.
Section 2. Number; Election; Qualification. The Board of Directors shall
consist of not more than fifteen (15) nor less than three (3) members. The exact
number of Directors within the maximum and minimum limitations specified herein
may be fixed from time to time by resolution of a majority of the Board of
Directors then in office or by the stockholders at the annual meeting of
stockholders. The Directors shall be elected by the stockholders at each annual
meeting, except as provided in Section 5 of this Article II. No Director need be
a stockholder.
Section 3. Director Nominations. Nominations of candidates for election as
Directors of the Corporation at any annual meeting of stockholders may be made
(a) by, or at the direction of, a majority of the Board of Directors or a
designated committee thereof, or (b) by any holder of record (both as of the
time notice of such nomination is given by the stockholder as set forth below
and as of the record date for the annual meeting in question) of any shares of
the capital stock of the Corporation entitled to vote at such annual meeting who
complies with the procedures set forth in this Section 3. Any stockholder who
seeks to make such a nomination, or his representative, must be present in
person at the annual meeting. Only persons nominated in accordance with the
procedures set forth in this Section 3 shall be eligible for election as
Directors at an annual meeting of stockholders.
Nominations, other than those made by, or at the direction of, the Board
of Directors or a designated committee thereof, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation as set forth in this
Section 3. To be timely, a stockholder's notice shall be delivered to, or mailed
and received, at the principal executive offices of the Corporation (a) not less
than 75 days nor more than 120 days prior to the Anniversary Date or (b) in the
event that the annual meeting of stockholders is called for a date more than
seven days prior to the Anniversary Date, not later than the close of business
on (i) the 20th day (or if that day is not a business day for the Corporation,
on the next succeeding business day) following the first date on which the date
of such meeting was publicly disclosed or (ii) if such date of public disclosure
occurs more than 75 days prior to such scheduled date of such meeting, then the
later of (1) the 20th day (or if that day is not a business day for the
Corporation, on the next succeeding business day) following the first date of
public disclosure of the date of such meeting or (2) the 75th day prior to such
scheduled date of such meeting (or if that day is not a business day for the
Corporation, on the next succeeding business day). Any public disclosure of the
scheduled date of the meeting made by the Corporation by means of a press
release, a report or other document filed with the Securities and Exchange
Commission, or a letter or report sent to stockholders of record of the
Corporation, shall be deemed to be sufficient public disclosure of the date of
such meeting for purposes of these By-laws.
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Such stockholder's notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director (i)
the name, age, business address and residential address of such person, (ii) the
principal occupation or employment of such person during the past five years,
(iii) the class and number of shares of the Corporation's capital stock which
are beneficially owned by such person on the date of such stockholder notice,
(iv) a description of any of the following events that has occurred within the
last five years and that is material to the evaluation of the ability or
integrity of such proposed nominee: (1) a petition under federal bankruptcy laws
or any state insolvency laws was filed by or against such person, (2) a
conviction of such person in a criminal proceeding or the naming of such person
as a subject of a criminal proceeding (excluding traffic violations and other
minor offenses), (3) a finding by any court of competent jurisdiction that such
person has violated any federal or state securities law or federal commodities
law, which judgment or finding has not been subsequently reversed, suspended or
vacated, or (4) the entry of any order, judgment or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction or of any
federal or state governmental or quasi-governmental agency, authority or
commission enjoining such person or otherwise limiting him from engaging in any
type of business practice or in any activity in connection with the purchase or
sale of any security or commodity, and (v) the consent of each nominee to serve
as a Director if so elected and (b) as to the stockholder giving the notice (i)
the name and address, as they appear on the Corporation's stock transfer books,
of such stockholder and of the beneficial owners (if any) of the stock
registered in such stockholder's name and the name and address of other
stockholders known by such stockholder to be supporting such nominee or
nominees, (ii) the class and number of shares of the Corporation's capital stock
which are beneficially owned by such stockholder and such beneficial owners (if
any) on the date of such stockholder's notice and by any other stockholders
known by such stockholder to be supporting such nominee or nominees on the date
of such stockholder's notice, (iii) a representation that the stockholder or his
representative intends to appear in person at the meeting to nominate the person
or persons specified in the notice, (iv) a description of all arrangements or
understandings between such stockholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the nomination or
nominations are to be made by such stockholders; provided, that nothing in this
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Section 3 shall require the stockholder giving such notice to provide to the
Corporation copies of such stockholder's preliminary or definitive proxy, proxy
statement, or other soliciting material filed with the Securities and Exchange
Commission. At the request of the Board of Directors, any person nominated by,
or at the direction of, the Board of Directors for election as a Director at an
annual meeting shall furnish to the Secretary of the Corporation that
information required to be set forth in a stockholder's notice of nomination
which pertains to such nominee.
No person shall be elected by the stockholders as a Director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 3. Election of Directors at the annual meeting need not be by written
ballot, unless otherwise provided by the Board of Directors or presiding officer
at such annual meeting. If written ballots are to be used, ballots bearing the
names of all the persons who have been nominated for election as Directors at
the
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annual meeting in accordance with the procedures set forth in this Section 3
shall be provided for use at the annual meeting.
If the Board of Directors, or a designated committee thereof, determines
that any stockholder nomination was not timely made in accordance with the terms
of this Section 3 or that the information provided in a stockholder's notice
does not satisfy the informational requirements of this Section 3 in any
material respect, then such nomination shall not be considered at the annual
meeting in question. If neither the Board of Directors nor such committee makes
a determination as to the validity of any nominations by a stockholder as set
forth above, the presiding officer of the annual meeting shall determine and
declare at the annual meeting whether a nomination was made in accordance with
the terms of this Section 3. If the presiding officer determines that a
nomination was made in accordance with the terms of this Section 3, he shall so
declare at the annual meeting and ballots shall be provided for use at the
meeting with respect to such nomination. If the presiding officer determines
that a nomination was not made in accordance with the terms of this Section 3,
he shall so declare at the annual meeting and such nomination shall be
disregarded.
Section 4. Tenure. Except as otherwise provided by law, by the Restated
Certificate of Incorporation or by these By-laws, Directors shall hold office
until the next annual meeting of stockholders and until their successors are
elected and qualified or until their earlier resignation or removal.
Section 5. Vacancies. Any vacancy occurring on the Board of Directors,
including any vacancy resulting from death, resignation, retirement,
disqualification, removal or other cause or created by reason of an increase in
the authorized number of Directors shall be filled by the affirmative vote of a
majority of the remaining Directors then in office, even if such majority is
less than a quorum of the Board of Directors. Any Director appointed in
accordance with the preceding sentence shall hold office subject to the
provisions of these By-laws until the next annual meeting of stockholders and
until such Director's successor is elected and qualified or until such Director
resigns or is removed. In the event of a vacancy in the Board of Directors, the
remaining Directors, except as otherwise provided by law, may exercise the
powers of the full Board of Directors until the vacancy is filled.
Section 6. Removal. Any Director (including persons elected by Directors
to fill vacancies in the Board of Directors) or the entire Board of Directors
may be removed with or without cause by the affirmative vote of the holders of
at least a majority of the voting power of the shares of the Corporation then
entitled to vote at an election of Directors, voting together as a single class.
Any Director may be removed for cause by vote of a majority of the Directors
then in office. A Director may be removed for cause only after reasonable notice
and opportunity to be heard before the body proposing to remove him.
Section 7. Resignation. A Director may resign at any time by giving
written notice to the Chairman of the Board, the President or the Secretary. A
resignation shall be effective upon receipt, unless the resignation otherwise
provides.
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Section 8. Regular Meetings. The regular annual meeting of the Board of
Directors shall be held, without other notice than this By-law, on the same date
and at the same place as the annual meeting of stockholders following the close
of such meeting of stockholders. Other regular meetings of the Board of
Directors may be held without call or notice at such hour, date and place as the
Board of Directors may from time to time determine.
Section 9. Special Meetings. Special meetings of the Board of Directors
may be called, orally or in writing, by or at the request of the Chairman of the
Board, the Treasurer, or two or more Directors designating the hour, date and
place thereof.
Section 10. Notice of Special Meetings. Notice of the hour, date and place
of all special meetings of the Board of Directors shall be given to each
Director by the Secretary or an Assistant Secretary, or in case of the death,
absence, incapacity or refusal of such persons, by the President. Notice of any
special meeting of the Board of Directors shall be given to each Director in
person or by telephone, telex, telecopy or other written form of electronic
communication, or by telegram sent to his business or home address at least 24
hours in advance of the meeting, or by written notice mailed to his business or
home address at least 48 hours in advance of the meeting. Such notice shall be
deemed to be delivered when hand delivered to such address, read to such
Director by telephone, deposited in the mail so addressed, with postage thereon
prepaid if mailed, dispatched or transmitted if telexed or telecopied, or when
delivered to the telegraph company if sent by telegram.
When any Board of Directors meeting, either regular or special, is
adjourned for 30 days or more, notice of the adjourned meeting shall be given as
in the case of an original meeting. It shall not be necessary to give any notice
of the hour, date or place of any meeting adjourned for less than 30 days or of
the business to be transacted thereat, other than an announcement at the meeting
at which such adjournment is taken of the hour, date and place to which the
meeting is adjourned.
A written waiver of notice executed before or after a meeting by a
Director and filed with the records of the meeting shall be deemed to be
equivalent to notice of the meeting. The attendance of a Director at a meeting
shall constitute a waiver of notice of such meeting, except where a Director
attends a meeting for the express purpose of objecting to the transaction of any
business because such meeting is not lawfully called or convened. Except as
otherwise required by law, by the Restated Certificate of Incorporation or by
these By-laws, neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Directors need be specified in the notice or waiver of
notice of such meeting.
Section 11. Quorum. At any meeting of the Board of Directors, a majority
of the Directors then in office shall constitute a quorum for the transaction of
business, but if less than a quorum is present at a meeting, a majority of the
Directors present may adjourn the meeting from time to time, and the meeting may
be held as adjourned without further notice, except as provided in
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Section 10 of this Article II. Any business which might have been transacted at
the meeting as originally noticed may be transacted at such adjourned meeting at
which a quorum is present.
Section 12. Action at Meeting. At any meeting of the Board of Directors at
which a quorum is present, a majority of the Directors present may take any
action on behalf of the Board of Directors, unless a larger number is required
by law, by the Restated Certificate of Incorporation or by these By-laws.
Section 13. Action by Consent. 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. Such written
consent shall be filed with the records of the meetings of the Board of
Directors and shall be treated for all purposes as a vote at a meeting of the
Board of Directors.
Section 14. Manner of Participation. Directors may participate in meetings
of the Board of Directors by means of conference telephone or similar
communications equipment by means of which all Directors participating in the
meeting can hear each other, and participation in a meeting in accordance
herewith shall constitute presence in person at such meeting for purposes of
these By-laws.
Section 15. Chairman of the Board. The Chairman of the Board shall,
subject to the direction of the Board of Directors, have general supervision and
control of its business. The Chairman of the Board shall preside, when present,
at all meetings of the Board of Directors, unless the Board of Directors shall
otherwise provide, and at meetings of the stockholders as provided in Section 11
of Article I hereof. The Chairman is not an officer of the Corporation.
Section 16. Committees. The Board of Directors, by vote of a majority of
the Directors then in office, may elect from its number one or more committees,
including an Executive Committee and an Audit Committee, and may delegate
thereto some or all of its powers except those which by law, by the Restated
Certificate of Incorporation, or by these By-laws may not be delegated. Except
as the Board of Directors may otherwise determine, any such committee may make
rules for the conduct of its business, but unless otherwise provided by the
Board of Directors or in such rules, its business shall be conducted so far as
possible in the same manner as is provided by these By-laws for the Board of
Directors. All members of such committees shall hold such offices at the
pleasure of the Board of Directors. The Board of Directors may abolish any such
committee at any time. Any committee to which the Board of Directors delegates
any of its powers or duties shall keep records of its meetings and shall report
its action to the Board of Directors. The Board of Directors shall have power to
rescind any action of any committee, but no such rescission shall have
retroactive effect.
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ARTICLE III
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Officers
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Section 1. Enumeration. The officers of the Corporation shall consist of a
President, a Secretary, a Treasurer, and such other officers, including without
limitation one or more Executive Vice Presidents, Vice Presidents, Assistant
Secretaries and Assistant Treasurers, as the Board of Directors may determine.
Section 2. Election. At the regular annual meeting of the Board of
Directors following the annual meeting of stockholders, the Board of Directors
shall elect the President, the Secretary, and the Treasurer. Other officers may
be elected by the Board of Directors at such regular annual meeting or at any
other regular or special meeting.
Section 3. Qualification. No officer need be a stockholder or a Director.
Any person may occupy more than one office of the Corporation at any time. Any
officer may be required by the Board of Directors to give bond for the faithful
performance of his duties in such amount and with such sureties as the Board of
Directors may determine.
Section 4. Tenure. Except as otherwise provided by the Restated
Certificate of Incorporation or by these By-laws, each officer of the
Corporation shall hold office until the regular annual meeting of the Board of
Directors following the next annual meeting of stockholders and until such
officer's successor is elected and qualified or until such officer's earlier
resignation or removal. Any officer may resign by delivering a written
resignation to the Board of Directors, and such resignation shall be effective
upon receipt unless it is specified to be effective at some other time or upon
the happening of some other event.
Section 5. Removal. Except as otherwise provided by law, the Board of
Directors may remove any officer with or without cause by the affirmative vote
of a majority of the Directors then in office.
Section 6. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors.
Section 7. President. The President shall be the chief operating officer
of the Corporation and shall perform such duties as the Board of Directors or
the Chairman of the Board may from time to time determine. In the absence of the
Chairman of the Board, the President shall preside, when present, at meetings of
the Board of Directors, unless the Board of Directors shall otherwise provide,
and at meetings of the stockholders as provided in Section 11 of Article I
hereof.
Section 8. Executive Vice Presidents; Vice Presidents. Any Executive Vice
President or Vice President shall have such powers and shall perform such duties
as the Board of Directors, the Chairman of the Board or the President may from
time to time designate.
Section 9. Treasurer and Assistant Treasurers. The Treasurer shall,
subject to the direction of the Board of Directors, have general charge of the
financial affairs of the Corporation and shall
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cause to be kept accurate books of account. He shall have custody of all funds,
securities, and valuable documents of the Corporation, except as the Board of
Directors may otherwise provide.
Any Assistant Treasurer shall have such powers and perform such duties as
the Board of Directors may from time to time designate.
Section 10. Secretary and Assistant Secretaries. The Secretary shall
record all the proceedings of the meetings of the stockholders and the Board of
Directors (including committees of the Board) in books kept for that purpose. In
his absence from any such meeting, a temporary secretary chosen at the meeting
shall record the proceedings thereof. The Secretary shall have charge of the
stock ledger (which may, however, be kept by any transfer or other agent of the
Corporation). He shall have custody of the seal of the Corporation, and he, or
an Assistant Secretary, shall have authority to affix it to any instrument
requiring it, and, when so affixed, the seal may be attested by his signature or
that of an Assistant Secretary. He shall have such other duties and powers as
may be designated from time to time by the Board of Directors, the Chairman of
the Board or the President.
Any Assistant Secretary shall have such powers and perform such duties as
the Board of Directors may from time to time designate.
Section 11. Other Powers and Duties. Subject to these By-laws and to such
limitations as the Board of Directors may from time to time prescribe, the
officers of the Corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the Board of Directors.
Section 12. Compensation. The compensation of the officers of the
Corporation shall be fixed from time to time by the Board of Directors;
provided, however, that the Board of Directors may authorize any officer or
committee to fix the compensation of officers and employees. No officer shall be
prevented from receiving compensation by reason of the fact that such officer is
also a Director of the Corporation.
ARTICLE IV
----------
Capital Stock
-------------
Section 1. Certificates of Stock. Each stockholder shall be entitled to a
certificate of the capital stock of the Corporation in such form as may from
time to time be prescribed by the Board of Directors. Such certificate shall
bear the Corporation seal and shall be signed by the Chairman of the Board or
the President or a Vice President and by the Treasurer or an Assistant Treasurer
or the Secretary or an Assistant Secretary. The Corporation seal and the
signatures by Corporation officers may be facsimiles if the certificate is
manually countersigned by an authorized person on behalf of a transfer agent or
registrar other than the Corporation or its employee. In case any officer,
transfer agent or registrar who has signed or whose facsimile
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signature has been placed on such certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, it may
be issued by the Corporation with the same effect as if such officer, transfer
agent or registrar were such officer, transfer agent or registrar at the time of
its issue. Every certificate for shares of stock which are subject to any
restriction on transfer and every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall contain such
legend with respect thereto as is required by law. The Corporation shall be
permitted to issue fractional shares.
Section 2. Transfers. Subject to any restrictions on transfer and unless
otherwise provided by the Board of Directors, shares of stock may be transferred
only on the books of the Corporation by the surrender to the Corporation or its
transfer agent of the certificate therefor properly endorsed or accompanied by a
written assignment or power of attorney properly executed, with transfer stamps
(if necessary) affixed, and with such proof of the authenticity of signature as
the Corporation or its transfer agent may reasonably require.
Section 3. Record Holders. Except as may otherwise be required by law, by
the Restated Certificate of Incorporation or by these By-laws, the Corporation
shall be entitled to treat the record holder of stock as shown on its books as
the owner of such stock for all purposes, including the payment of dividends and
the right to vote with respect thereto, regardless of any transfer, pledge or
other disposition of such stock, until the shares have been transferred on the
books of the Corporation in accordance with the requirements of these By-laws.
It shall be the duty of each stockholder to notify the Corporation of his,
her or its post office address and any changes thereto.
Section 4. Record Date. In order that the Corporation may determine the
stockholders entitled to receive notice of or to vote at any meeting of
stockholders or any adjournments thereof, or 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, in
advance, a record date, which, (i) with respect to any meeting of stockholders,
shall be not more than 60 nor less than 10 days (except as otherwise required by
law) before the date of such meeting, (ii) with respect to corporate action
without a meeting, shall be not more than 10 days after the date on which the
resolution fixing the record date is adopted by the Board of Directors and (iii)
with respect to any other lawful action, shall be not more than 60 days prior to
such action. In such case, only stockholders of record on such record date shall
be so entitled, notwithstanding any transfer of stock on the books of the
Corporation after the record date.
If no record date is fixed: (i) the record date for determining
stockholders entitled to receive notice of or to vote at a meeting of
stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held; (ii) the record
date for determining stockholders entitled to express consent to corporate
action in writing without a
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meeting, when no prior action by the Board of Directors is necessary, shall be
the day on which the first written consent is expressed; and (iii) the record
date for determining stockholders for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution
relating thereto.
Section 5. Replacement of Certificates. In case of the alleged loss,
destruction or mutilation of a certificate of stock, a duplicate certificate may
be issued in place thereof, upon such terms as the Board of Directors may
prescribe.
ARTICLE V
---------
Indemnification of Directors, Officers and Others
-------------------------------------------------
Section 1. Indemnifiable Events; Extent of Indemnification.
(a) The Corporation shall indemnify, to the fullest extent permitted by
the General Corporation Law of the State of Delaware (as presently in effect or
as hereafter amended):
(i) 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 (other than an
action or suit by or in the right of the Corporation) by reason of the
fact that he is or was a Director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such suit, action or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be
in or not opposed to the best interests of the Corporation or, with
respect to any criminal action or proceeding, that the person had
reasonable cause to believe that his conduct was unlawful.
(ii) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit 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 or officer of the Corporation, or is
or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
15
Corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable for negligence or misconduct in the performance of
his duty to the Corporation unless, and only to the extent that, the Court
of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
(iii) To the extent that a Director or officer of the Corporation
has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in paragraphs (i) and (ii), or in defense
of any claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
(b) The Board of Directors, in its discretion, may authorize the
Corporation to indemnify:
(i) 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 (other than an
action by or in the right of the Corporation) by reason of the fact that
he is or was an employee or agent of the Corporation, or is or was serving
at the request of the Corporation as a Director or as an employee or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be
in or not opposed tothe best interests of the Corporation or, with respect
to any criminal action or proceeding, that the person had reasonable cause
to believe that his conduct was unlawful.
(ii) Any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit 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 an employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of
any claim, issue
16
or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the
Corporation unless, and only to the extent that, the Court of Chancery of
the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnify for such expenses which the
Court of Chancery or such other court shall deem proper.
Section 2. Determination of Entitlement. Any indemnification hereunder
(unless required by law or ordered by a court) shall be made by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the Director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 of this Article V. Such determination shall be made (a) by the Board
of Directors by a majority vote of a quorum consisting of Directors who were not
parties to such action, suit or 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 of the Corporation.
Section 3. Advance Payments. Expenses incurred in defending a civil or
criminal action, suit or proceeding may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding, only as authorized by
the Board of Directors in the specific case (including by one or more Directors
who may be parties to such action, suit or proceeding), upon receipt of an
undertaking by or on behalf of the Director, officer, employee or agent to repay
such amount unless it shall ultimately be determined that he is entitled to be
indemnified by the Corporation as authorized in this Article V.
Section 4. Non-Exclusive Nature of Indemnification. The indemnification
provided herein shall not be deemed exclusive of any other rights to which any
person, whether or not entitled to be indemnified hereunder, may be entitled
under any statute, by-law, agreement, vote of stockholders or Directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a Director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person. Each
person who is or becomes a Director or officer as aforesaid shall be deemed to
have served or to have continued to serve in such capacity in reliance upon the
indemnity provided for in this Article V.
Section 5. Insurance. To the extent obtainable, the Corporation may
purchase and maintain insurance with reasonable limits on behalf of any person
who 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 against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation would have the power to indemnify such
person against such liability under the provisions of the General Corporation
Law of the State of Delaware (as presently in effect or
17
hereafter amended), the Restated Certificate of Incorporation of the Corporation
or these By-laws.
Section 6. No Duplicate Payments. The Corporation's indemnification under
Section 1 of this Article V of any person who 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, shall be reduced by any
amounts such person receives as indemnification (i) under any policy of
insurance purchased and maintained on such person's behalf by the Corporation,
(ii) from such other Corporation, partnership, joint venture, trust or other
enterprise, or (iii) under any other applicable indemnification provision.
Section 7. Amendment. This Article V may be amended only so as to have a
prospective effect. Any amendment to this Article V which would result in any
person having a more limited entitlement to indemnification may be approved only
by the stockholders.
ARTICLE VI
----------
Transactions with Related Parties
---------------------------------
Section 1. Transactions Not Void. No contract or transaction between the
Corporation and one or more of its Directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its Directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof,
which authorizes the contract or transaction, or solely because his or their
votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors, or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested Directors, even though the disinterested Directors be less than a
quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or
(c) The contract or transaction is fair as to the Corporation as of the
time it is authorized, approved or ratified, by the Board of Directors, a
committee thereof, or the stockholders.
18
Section 2. Quorum. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
Section 3. Limitation. Nothing herein contained shall protect or purport
to protect any Director or officer of the Corporation against any liability to
the Corporation or its security holders to which he would otherwise be subject
by reason of his willful misfeasance, bad faith, gross negligence, or reckless
disregard of the duties involved in the conduct of his office.
ARTICLE VII
-----------
Miscellaneous Provisions
------------------------
Section 1. Fiscal Year. Except as otherwise determined by the Board of
Directors, the fiscal year of the Corporation shall end on December 31 of each
year.
Section 2. Seal. The Board of Directors shall have power to adopt and
alter the seal of the Corporation.
Section 3. Execution of Instruments. All deeds, leases, transfers,
contracts, bonds, notes and other obligations to be entered into by the
Corporation in the ordinary course of its business without Director action may
be executed on behalf of the Corporation by the Chairman of the Board, the
President, the Treasurer or any Vice President.
Section 4. Voting of Securities. Unless the Board of Directors otherwise
provides, the Chairman of the Board, the President or the Treasurer may waive
notice of and act on behalf of this Corporation, or appoint another person or
persons to act as proxy or attorney in fact for this Corporation with or without
discretionary power and/or power of substitution, at any meeting of stockholders
or stockholders of any other corporation or organization, any of whose
securities are held by this Corporation.
Section 5. Resident Agent. The Board of Directors may appoint a resident
agent upon whom legal process may be served in any action or proceeding against
the Corporation.
Section 6. Corporate Records. The original or attested copies of the
Restated Certificate of Incorporation, By-laws and records of all meetings of
the incorporators, stockholders and the Board of Directors and the stock and
transfer records, which shall contain the names of all stockholders, their
record addresses and the amount of stock held by each, shall be kept at the
principal office of the Corporation, at the office of its counsel, or at an
office of its transfer agent.
Section 7. Restated Certificate of Incorporation. All references in these
By-laws to the Restated Certificate of Incorporation shall be deemed to refer to
the Restated Certificate of Incorporation of the Corporation, as amended and in
effect from time to time.
19
Section 8. Amendments. These By-laws may be altered, amended or repealed,
to the extent permitted by applicable law, the Restated Certificate of
Incorporation and agreements to which the Corporation may from time to time be a
party, by the affirmative vote of the holders of a majority of the voting power
of all classes of the stock of the Corporation then entitled to vote, voting
together as a single class, at any regular or special meeting of the
stockholders of the Corporation, or by the vote of a majority of the Board of
Directors at any regular or special meeting thereof, without any action on the
part of the stockholders, unless otherwise provided herein; provided, however,
that (i) the Board of Directors may not amend or repeal this Section 8 nor may
it amend or repeal any other provision of these By-laws to the extent such
amendment or repeal requires action by the stockholders, and (ii) any amendment
or repeal of these By-laws by the Board of Directors and any provision to these
By-laws adopted by the Board of Directors may be amended or repealed by the
stockholders.
20