EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
CHART INDUSTRIES, INC.
As Amended and Restated September 15, 2003
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
FISCAL YEAR
Section 1. Fiscal Year. The fiscal year of the Corporation shall end
upon each December 31, or otherwise shall be as designated by the Board of
Directors.
ARTICLE III
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders for
the election of Directors, and for the transaction of any other proper business,
shall be held on such date after the annual financial statements of the
Corporation have been prepared as shall be determined by the Board of Directors
from time to time. Only such business shall be conducted as shall have been
properly brought before the meeting. In the event that the annual meeting is not
held on the date designated therefor in accordance with this Section 1, the
Directors shall cause the annual meeting to be held as soon after that date as
convenient. [211]
Section 2. Special Meetings. Special meetings of the stockholders may
be called at any time by the Chairman of the Board or the President of the
Corporation or by holders of ten percent (10%) or more of the outstanding shares
of Common Stock, and shall be called by the Chairman of the Board or President
at the request in writing of a majority of the Board of Directors or such
stockholders. Calls for special meetings shall specify the purpose or purposes
of the proposed meeting, and no business shall be considered at any such meeting
other than that specified in the call therefor. [211, 222]
Section 3. Place of Meetings. All meetings of the stockholders shall
be held at such place, if any, either within or without the State of Delaware,
as shall be designated in the notice of such meeting. The Board of Directors
may, in its sole discretion, determine that the meeting shall not be held at any
place, but may instead be held solely by means of remote communication as
authorized by the Delaware General Corporation Law. If authorized by the Board
of Directors, and subject to such guidelines and procedures as the Board of
Directors may adopt, stockholders and proxyholders not physically present at a
meeting of stockholders may, by means of remote communication, participate and
be deemed present in person and vote at a meeting of stockholders whether such
meeting is to be held at a designated place or solely by means of remote
communication, provided that: (a) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the
meeting by means of remote communication is a stockholder or proxyholder; (b)
the Corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to
vote on matters submitted to the stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such
proceedings; and (c) if any stockholder or proxyholder votes or takes other
action at the meeting by means of remote communication, a record of such vote or
other action shall be maintained by the Corporation. [211(a)]
Section 4. Notice of Meetings and Adjourned Meetings. Written or other
proper notice of any meeting of stockholders stating the place, if any, date and
hour of the meeting, the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such meeting, the information needed to access the stockholders' list during the
meeting if the meeting is held by means of remote communication and the purpose
or purposes for which the meeting is called, shall be given to each stockholder
entitled to vote at such meeting not less than ten (10) nor more than sixty (60)
days before the date of the meeting. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders
given by the Corporation under any provision of these By-laws or otherwise shall
be effective if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given; any such consent shall be deemed
revoked if (a) the Corporation is unable to deliver by electronic transmission
two consecutive notices given by the Corporation in accordance with such
consent, and (b) such inability becomes known to the Secretary or an Assistant
Secretary of the Corporation or to the transfer agent, or other person
responsible for the giving of notice; provided, however, that the inadvertent
failure to treat such inability as a revocation shall not invalidate any meeting
or other action. Notice given pursuant to the preceding sentence shall be deemed
given: (i) if by facsimile telecommunication, when directed to a number at which
the stockholder has consented to receive notice; (ii) if by electronic mail,
when directed to an electronic mail address at which the stockholder has
consented to receive notice; (iii) if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon
the later of (A) such posting, and (B) the giving of such separate notice; and
(iv) if by any other form of electronic transmission, when directed to the
stockholder in the manner consented to by the stockholder.
When a meeting is adjourned to another time or place, if any, notice
need not be given of the adjourned meeting if the time and place, if any,
thereof, and the means of remote communication, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such
adjourned meeting, are announced at the meeting at which the
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adjournment is taken. At the adjourned meeting the Corporation may transact any
business which might have been transacted at the original meeting. If the
adjournment is for more than thirty (30) days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
For purposes of these By-laws, "electronic transmission" means any
form of communication, not directly involving the physical transmission of
paper, that creates a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process. [222, 232]
Section 5. Stockholders' List. The officer who has charge of the stock
ledger of the Corporation shall prepare and make, at least ten (10) days before
every 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 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 for a period of at least ten (10) days prior
to the meeting, either (a) on a reasonably accessible electronic network,
provided that the information required to gain access to such list is provided
with the notice of the meeting, or (b) during ordinary business hours, at the
principal place of business of the Corporation. If the meeting is to be held at
a place, the list shall 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. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any
stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be
provided with the notice of the meeting. [219(a)]
Section 6. Quorum. At any meeting of the stockholders, except as
otherwise provided by the Delaware General Corporation Law, the Certificate of
Incorporation, or these By-Laws, a majority of the shares entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum
for the transaction of business; provided, that no action required by the
Certificate of Incorporation or these By-laws to be authorized or taken by a
designated proportion of shares may be authorized or taken by a lesser
proportion; provided, further, that where a separate vote by a class or classes
of shares is required by law, the Certificate of Incorporation or these By-laws,
a majority of the outstanding shares of such class or classes, present in person
or represented by proxy, shall constitute a quorum entitled to take action with
respect to that vote. If such quorum shall not be present or represented by
proxy at any meeting of the stockholders, the stockholders present in person or
represented by proxy shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented by proxy. [216]
Section 7. Voting. In all matters other than the election of Directors
and other than any matters upon which by express provision of the Certificate of
Incorporation or of these By-laws a different vote is required, the vote of a
majority of the shares entitled to vote on the subject matter and present in
person or represented by proxy at the meeting shall be the act of the
stockholders. Directors shall be elected by a plurality of the votes of the
shares entitled to vote on the election of Directors and present in person or
represented by proxy at the meeting. Except
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as otherwise provided in the Certificate of Incorporation, each stockholder
entitled to vote at any meeting of the stockholders shall be entitled to one
vote for each share of capital stock held by such stockholder. [216, 212(a)]
Section 8. Proxies. Each stockholder entitled to vote at a meeting of
the stockholders may authorize, by any means permitted pursuant to the Delaware
General Corporation Law and approved by the Board of Directors, another person
or persons to act for him by proxy. No such proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer
period. [212(b)]
Section 9. Notice of Stockholder Business and Nominations.
(a) Annual Meeting of Stockholders.
(i) The nomination of persons for election to the Board of
Directors of the Corporation and the proposal of business to be considered by
the stockholders may be made at an annual meeting of stockholders (A) as
specified in the notice of meeting, if so specified, (B) by or at the direction
of the Board of Directors or the Chairman of the Board of Directors or, in the
event of his absence or disability, the Vice Chairman, or in the event of his
absence or disability, the Chief Executive Officer or other officers of the
Corporation designated by the Board, or (C) by any stockholder of the
Corporation who is entitled to vote at the meeting, who complies with the notice
procedures set forth in subparagraph (a)(ii) of this Section 9 and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation.
(ii) For nominations or other business to be properly
brought before an annual meeting by a stockholder pursuant to subparagraph
(a)(i)(C) of this Section 9, the stockholder must have given timely notice
thereof in writing or by electronic transmission to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to the
Secretary at the principal place of business of the Corporation not less than
sixty (60) calendar days nor more than ninety (90) calendar days prior to the
first anniversary of the date on which the Corporation first mailed its proxy
materials for the preceding year's annual meeting of stockholders; provided that
if the date of the annual meeting is moved more than thirty (30) calendar days
from the first anniversary of the preceding year's annual meeting, to be timely,
notice by the stockholder must be so delivered not earlier than one hundred
twenty (120) calendar days prior to such annual meeting and not later than the
later of the ninetieth (90th) calendar day prior to such meeting or the close of
business on the tenth (10th) calendar day following the date on which public
announcement of the date of such meeting is first made. In no event shall the
adjournment of an annual meeting commence a new time period for the giving of a
stockholder's notice as described above. The stockholder's notice shall set
forth (A) as to each nominee for election or reelection as a Director, all
information relating to such person and the nomination that is required to be
disclosed in solicitations of proxies for election of Directors, or is otherwise
required, in each case pursuant to Section 14 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the rules and regulations promulgated
thereunder or any successors thereto, including the nominee's written consent to
being named in the proxy statement as a nominee and to serving as a Director if
elected, and a description of any arrangements or understandings with the
nominee or third parties (including their names)
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pursuant to which the nomination is to be made, (B) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of the business that the stockholder proposes to bring before the meeting, the
reasons for conducting such business at the meeting, and any material interest
in such business, and arrangements or understandings with third parties
(including their names) with respect to such business, that such stockholder may
have and that any beneficial owner on whose behalf the proposal is made may
have, and (C) as to the stockholder giving the notice and any beneficial owner
on whose behalf the nomination or proposal is made, (1) the name and address of
such stockholder, as such information appears on the Corporation's books, and of
such beneficial owner, (2) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner, and (3) a representation that the such stockholder intends to
appear in person or by proxy at the annual meeting to nominate the nominee or to
bring such business before the meeting.
(b) Special Meetings of Stockholders. Only such business as shall
have been brought before the special meeting of the stockholders pursuant to the
Corporation's notice of meeting as provided in Article III, Section 4 of these
By-laws shall be conducted at such meeting. Nominations of persons for election
to the Board of Directors may be made at a special meeting of stockholders at
which Directors are to be elected pursuant to the Corporation's notice of
meeting (i) by or at the direction of the Board of Directors, or (ii) by any
stockholder of the Corporation who is entitled to vote at the meeting, who
complies with the notice procedures set forth in this Section 9 and who is a
stockholder of record at the time such notice is delivered to the Secretary of
the Corporation. Nominations by a stockholder of persons for election to the
Board of Directors may be made at such special meeting of stockholders if the
stockholder delivers notice thereof, meeting the requirements and setting forth
the information required by subparagraph (a)(ii) of this Section 9, to the
Secretary at the principal place of business of the Corporation not earlier than
ninety (90) calendar days prior to such special meeting or later than the close
of business on the tenth (10th) calendar day following the date on which public
announcement is first made of the date of such meeting and the nominees proposed
by the Board of Directors to be elected at such meeting. In no event shall the
adjournment of a special meeting commence a new time period for the giving of a
stockholder's notice as described above.
(c) General. Only those persons who are nominated in accordance
with the procedures set forth in this Section 9 shall be eligible for election
as Directors, and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 9. Except as otherwise provided by law,
the Certificate of Incorporation, or these By-laws, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting has met the requirements set forth in
this Section 9 and, if any proposal or nomination is not in compliance with this
Section 9, to declare that such defective proposal or nomination shall be
disregarded. Notwithstanding the foregoing provisions of this Section 9, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations promulgated thereunder with respect to the
matters set forth in this Section 9. Nothing in this Section 9 shall be deemed
to affect any rights (i) of stockholders to request inclusion of proposals in
the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act,
or change the notice requirements thereunder, or (ii) of the holders of any
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series of Preferred Stock, if any, to elect Directors if so provided under an
applicable designation of Preferred Stock.
Section 10. Action by Stockholders by Written Consent. Any action
required or permitted to be taken at any meeting of the stockholders may be
taken without a meeting, without prior notice and without a vote, if a consent
or consents in writing or by electronic transmission, setting forth the action
so taken, shall be signed by the holders of outstanding stock having not less
than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were
present and voted, and such written consent or consents or electronic
transmission or transmissions are filed with the minutes of proceedings of the
stockholders. Such filings shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are maintained in
electronic form. Prompt notice of the taking 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 and who, if the action had been
taken at a meeting, would have been entitled to notice of the meeting if the
record date for such meeting had been the date that written consents signed by a
sufficient number of holders to take the action were delivered to the
corporation. [228]
ARTICLE IV
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed by or under the direction of a Board of Directors, except as
may be otherwise provided in the Delaware General Corporation law or in the
Certificate of Incorporation. [141(a)]
Section 2. Number of Directors. Subject to any legal or contractual
obligations by which the Corporation is bound or to which it is a party and
except as may be otherwise provided by the Delaware General Corporation law or
in the Certificate of Incorporation, the number of Directors which shall
constitute the whole Board shall be fixed at seven (7) or such higher number as
shall be approved by the Board of Directors. Directors may, but need not, be
stockholders. [141(b)]
Section 3. Election of Directors. Subject to any legal or contractual
obligations by which the Corporation is bound or to which it is a party and
except as provided in the Certificate of Incorporation, the Directors shall be
elected at the annual meeting of stockholders, or if not so elected, at a
special meeting of stockholders called for that purpose, or by the holders of a
majority of the outstanding shares entitled to vote in the election of Directors
pursuant to a written consent or consents of such stockholders; at any meeting
of stockholders at which Directors are to be elected, only persons nominated as
candidates shall be eligible for election, and the Directors elected at a
meeting shall be elected by a plurality of the votes of the shares present in
person or represented by proxy at the meeting and entitled to vote on the
election of Directors. The vote of any stockholder on an election of Directors
may be taken in any manner approved by the Board of Directors prior to the
meeting and no such vote shall be required to be taken by written ballot or by
electronic transmission unless otherwise required by law. [211, 216]
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Section 4. Removal; Vacancies. Subject to any legal or contractual
obligations by which the Corporation is bound or to which it is a party and
except as provided in the Certificate of Incorporation, any Director or the
entire Board of Directors may be removed, with or without cause, at any time by
the affirmative vote of the holders of record of a majority of the outstanding
shares then entitled to vote in the election of Directors. Subject to any legal
or contractual obligations by which the Corporation is bound or to which it is a
party and except as provided in the Certificate of Incorporation, the vacancy or
vacancies in the Board of Directors caused by any such removal may be filled by
the stockholders in the manner specified in Section A.5 of Article Fifth of the
Certificate of Incorporation or by a majority of the Directors remaining in
office (although less than a quorum) or by the sole remaining Director. [141(k),
223(a)]
Section 5. Resignation; Vacancies. Any Director may resign at any time
upon notice given in writing or by electronic transmission to the Corporation. A
resignation from the Board of Directors shall be deemed to take effect
immediately upon receipt of such notice or at such other time as the Director
may specify in such notice. Subject to any legal or contractual obligations by
which the Corporation is bound or to which it is a party and except as provided
in the Certificate of Incorporation, the vacancy or vacancies in the Board of
Directors resulting from such resignation may be filled by the stockholders or
by a majority of the Directors remaining in office (although less than a quorum)
or by the sole remaining Director. Subject to any legal or contractual
obligations by which the Corporation is bound or to which it is a party and
except as provided in the Certificate of Incorporation, if a Director dies, the
vacancy or vacancies in the Board of Directors resulting from such death may be
filled by the stockholders or by a majority of the Directors remaining in office
(although less than a quorum) or by the sole remaining Director. Subject to any
legal or contractual obligations by which the Corporation is bound or to which
it is a party and except as provided in the Certificate of Incorporation, each
Director so chosen to fill a vacancy shall hold office until the next election
of Directors, and until his successor shall be elected and qualified, or until
his earlier resignation or removal. [141(b), 223(d)]
Section 6. Annual Meeting. Immediately following each annual meeting
of stockholders for the election of Directors, the Board of Directors may meet
for the purpose of organization, the election of officers and the transaction of
other business at the place, if any, where the annual meeting of stockholders
for the election of Directors is held. Notice of such meeting need not be given.
Such meeting may be held at any other time or place, if any, which shall be
specified in a notice given as hereinafter provided for special meetings of the
Board of Directors or in a consent and waiver of notice thereof signed by all of
the Directors.
Section 7. Regular Meetings. Regular meetings of the Board of
Directors may be held at such places (within or without the State of Delaware),
if any, and at such times as the Board shall by resolution determine. If any day
fixed for a regular meeting shall be a legal holiday at the place where the
meeting is to be held, then the meeting which would otherwise be held on that
day shall be held at such place, if any, at the same hour and on the next
succeeding business day not a legal holiday. Notice of regular meetings need not
be given.
Section 8. Special Meetings. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, by the
President or by any Director. Notice
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of each such meeting shall be mailed to each Director, addressed to him at his
residence or usual place of business, at least three (3) days before the day on
which the meeting is to be held, or shall be sent to him by telegram or
cablegram so addressed, or shall be delivered personally or by telephone or
telecopy or other electronic or wireless means, at least twenty-four (24) hours
before the time the meeting is to be held. Each such notice shall state the time
and place (within or without the State of Delaware), if any, of the meeting but
need not state the purposes thereof, except as otherwise required by the
Delaware General Corporation Law or by these By-laws.
Section 9. Quorum: Voting Adjournment. Except as otherwise provided by
the Certificate of Incorporation or by these By-laws, a majority of the total
number of Directors shall constitute a quorum for the transaction of business at
any meeting, and the vote of a majority of the Directors present at a meeting at
which a quorum is present shall be the act of the Board of Directors. In the
absence of a quorum, the Director or Directors present at any meeting may
adjourn such meeting from time to time until a quorum shall be present. Notice
of any adjourned meeting need not be given. [141(b)]
Section 10. Communications. Members of the Board of Directors, or of
any committee thereof, may participate in a meeting of such board or committee
by means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 10 shall constitute presence
in person at such meeting. [141(1)]
Section 11. Action of Directors Without a Meeting. Any action required
or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or
such committee, as the case may be, consent thereto in writing or by electronic
transmission, and such written consent or consents or electronic transmission or
transmissions are filed with the minutes of proceedings of the Board or such
committee. Such filings shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are maintained in
electronic form. [141(f)]
Section 12. Compensation. Directors, as such, shall not receive any
stated salary for their services, but by resolution of the Board of Directors a
fixed sum and expenses of attendance, if any, may be allowed for attendance at
any meeting of the Board or of any committee thereof. Nothing herein contained
shall be construed so as to preclude any Director from serving the Corporation
in any other capacity, or from serving any of its stockholders, subsidiaries or
affiliated corporations in any capacity, and receiving compensation therefor.
[141(h)]
Section 13. Committees. Subject to any legal or contractual
obligations by which the Corporation is bound or to which it is a party, the
Board of Directors may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of two or more of
the Directors of the Corporation. Subject to any legal or contractual
obligations by which the Corporation is bound or to which it is a party, the
Board may designate one or more Directors as alternate members of any committee,
who may replace any absent or disqualified member at any meeting of the
committee. Subject to any legal or contractual obligations by which the
Corporation is bound or to which it is a party, in the absence or
disqualification of a member of a committee, the member or members thereof
present at any
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meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may unanimously appoint another member of the Board of Directors to act
at the meeting in the place of any such absent or disqualified member. Subject
to the limitations of Section 141(c) of the Delaware General Corporation Law, as
amended from time to time (or of any successor thereto, however denominated),
any such committee, to the extent provided in the Board resolution, shall have
and may exercise the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, and may authorize the
seal of the Corporation (if any) to be affixed to all papers which may require
it. Such committee or committees shall have such name or names as may be
determined from time to time by resolution adopted by the Board of Directors.
Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors when required. [141(c)]
Section 14. Interested Directors; Quorum. 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 purposes, 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 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. 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. [144]
ARTICLE V
NOTICES
Section 1. Notices. Whenever, under the provisions of the Delaware
General Corporation Law or of the Certificate of Incorporation or these By-laws,
notice is required to be given to any Director or stockholder, it shall not be
necessary that personal notice be given, and such notice may be given in
writing, by mail, addressed to such Director or stockholder, at his address as
it appears on the records of the Corporation or at his residence or usual place
of business, with postage thereon prepaid, and such notice shall be deemed to be
given three (3) days after the same shall be deposited in the United States
mail. Notice also may be given in any other proper form, as authorized by the
Delaware General Corporation Law. Notice that is given by facsimile shall be
deemed delivered when sent to a number at which any Director or stockholder has
consented to receive such notice with receipt confirmed. Notice that is given in
person or by telephone shall be deemed to be given when the same shall be
delivered. Without limiting the manner by which notice otherwise may be given
effectively to any Director or
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stockholder, any notice given under any provision of these By-laws shall be
effective if given by a form of electronic transmission consented to by such
person. Notice given by electronic mail shall be deemed delivered when directed
to an electronic mail address at which such person has consented to receive
notice and notice given by a posting on an electronic network together with
separate notice to such person of such specific posting shall be deemed
delivered upon the later of (a) such posting and (b) the giving of such separate
notice. Notice given by any other form of electronic transmission shall be
deemed given when directed to any Director or stockholder in the manner
consented to by such Director or stockholder.
Section 2. Waiver of Notice. Whenever any notice is required to be
given under any provision of the Delaware General Corporation Law or of the
Certificate of Incorporation or these By-laws, a written waiver, signed by the
person or persons entitled to said notice, or a waiver by electronic
transmission by the person or persons entitled to notice, whether before or
after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting,
at the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened. [229]
ARTICLE VI
OFFICERS
Section 1. Officers. The officers of the Corporation shall be a
President, a Secretary, a Treasurer and, if the Board of Directors shall so
determine, or as may be deemed necessary by the Board from time to time, a
Chairman of the Board, a Vice Chairman of the Board, one or more Vice Presidents
and other officers and assistant officers. Any number of offices may be held by
the same person. [142(a)]
Section 2. Election of Officers. Each officer of the Corporation shall
be elected by the Board of Directors and shall hold office at the pleasure of
the Board of Directors until his successor has been elected or until his earlier
resignation or removal. [142(b)]
Section 3. Resignation. Any officer may resign at any time by giving
written notice of his resignation to the Corporation. Any such resignation shall
take effect immediately upon receipt of such notice or at such other time
specified in such notice. Unless otherwise specified in such notice, the
acceptance of such resignation by the Corporation shall not be necessary to make
it effective. [142(b)]
Section 4. Removal. Any officer may be removed at any time, either
with or without cause, by action of the Board of Directors.
Section 5. Vacancies. A vacancy in any office because of death,
resignation, removal or any other reason shall be filled by the Board of
Directors. [141(e)]
Section 6. Powers and Duties. All officers, as between themselves and
the Corporation, shall have such authority and perform such duties as are
customarily incident to their respective offices, and as may be specified from
time to time by the Board of Directors, regardless of whether such authority and
duties are customarily incident to such office. In the
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absence of any officer of the Corporation, or for any other reason the Board of
Directors may deem sufficient, the Board of Directors may delegate for the time
being the powers or duties of such officer, or any of them, to any other officer
or to any Director. The Board of Directors may from time to time delegate to any
officer the authority to appoint and remove subordinate officers and to
prescribe their authority and duties.
Section 7. Compensation. The compensation of the officers shall be
fixed from time to time by the Board of Directors or, if delegated by the Board,
by the President or Chairman of the Board. Any such decision by the President or
Chairman of the Board shall be final unless expressly overruled or modified by
action of the Board of Directors, in which event such action of the Board of
Directors shall be conclusive of the matter. Nothing contained herein shall
preclude any officer from serving the Corporation in any other capacity,
including that of Director, or from serving any of its stockholders,
subsidiaries or affiliated corporations in any capacity, and receiving a proper
compensation therefor.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section 1. Indemnification of Directors and Officers. The Corporation
shall indemnify, to the fullest extent now or hereafter permitted by law, any
Director or officer who was or is a party or is threatened to be made a party
to, or is involved in, any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (hereafter,
a "proceeding"), by reason of the fact that he or she, or a person of whom he or
she is the legal representative, is or was a Director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, manager, partner, trustee, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official capacity
as a director, officer, manager, partner, trustee, employee or agent or in any
other capacity while serving as a director, officer, manager, partner, trustee,
employee or agent, against all expense, liability and loss (including attorneys'
fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer, manager, partner, trustee, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators, provided, however, that, except as provided in Section 4 of this
Article, the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof) initiated by such person only
if such proceeding (or part thereof) was authorized by the Board of Directors of
the Corporation.
Section 2. Indemnification of Employees and Agents. The Corporation
may indemnify any employee or agent of the Corporation to an extent greater than
that required by law only if and to the extent that the Directors may, in their
discretion, so determine.
Section 3. Advancement of Expenses. Expenses, including attorneys'
fees, incurred by a Director or officer of the Corporation in defending any
proceeding referred to in Section 1 of this Article, shall be paid by the
Corporation, in advance of the final disposition of
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such proceeding upon receipt of an undertaking by or on behalf of the Director
or officer to repay such amount if it shall ultimately be determined that he or
she is not entitled to be indemnified by the Corporation as authorized in this
Article; which undertaking may be secured or unsecured, at the discretion of the
Corporation.
Section 4. Procedures and Presumptions Under this Article VII. If a
claim under Section 1 of this Article is not paid in full by the Corporation
within thirty (30) days after a written claim has been received by the
Corporation, the claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expense of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the General
Corporation Law for the State of Delaware for the Corporation to indemnify the
claimant for the amount claimed, but the burden of proving such defense shall be
on the Corporation. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the General Corporation Law for the
State of Delaware, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) that the
claimant has not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant has not met the applicable
standard of conduct.
Section 5. Indemnification Provided in this Article VII Not Exclusive.
The indemnification and advancement of expenses provided under this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any law, the
Certificate of Incorporation of the Corporation, these By-Laws, any agreement,
vote of stockholders or of disinterested Directors or otherwise, both as to
action in their official capacity and as to action in another capacity while
holding such office.
Section 6. Article VII Deemed a Contract. This Article shall be deemed
to be a contract between the Corporation and each Director or officer of the
Corporation, or individual who is or was serving at the request of the
Corporation as a director, officer, member, partner, trustee, employee or agent
of another corporation, limited liability company, partnership, joint venture,
trust or other enterprise, who serves in such capacity at any time while this
Article is in effect, and any repeal, amendment or other modification of this
Article shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole or in
part upon any such state of facts.
Section 7. Insurance. The Corporation may maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of the
Corporation, or individual serving at the request of the Corporation as a
director, officer, member, partner, trustee, employee or agent of another
corporation, limited liability company, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or not the
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Corporation would have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of Delaware.
ARTICLE VIII
LOANS, CHECKS DEPOSITS, ETC.
Section 1. General. All checks, drafts, bills of exchange or other
orders for the payment of money, issued in the name of the Corporation, shall be
signed by such person or persons and in such manner as may from time to time be
designated by the Board of Directors, which designation may be general or
confined to specific instances.
Section 2. Loans and Evidences of Indebtedness. No loan shall be
contracted on behalf of the Corporation, and no evidence of indebtedness shall
be issued in its name, unless authorized by the Board of Directors. Such
authorization may be general or confined to specific instances. Loans so
authorized by the Board of Directors may be effected at any time for the
Corporation from any bank, trust company or other institution, or from any firm,
corporation or individual. All bonds, debentures, notes and other obligations or
evidences of indebtedness of the Corporation issued for such loans shall be
made, executed and delivered as the Board of Directors shall authorize. When so
authorized by the Board of Directors, any part of or all the properties,
including contract rights, assets, business or goodwill of the Corporation,
whether then owned or thereafter acquired, may be mortgaged, pledged,
hypothecated or conveyed or assigned in trust as security for the payment of
such bonds, debentures, notes and other obligations or evidences of indebtedness
of the Corporation, and of the interest thereon, by instruments executed and
delivered in the name of the Corporation.
Section 3. Banking. All funds of the Corporation not otherwise
employed shall be deposited from time to time to the credit of the Corporation
in such banks, trust companies or other depositaries as the Board of Directors
may authorize. The Board of Directors may make such special rules and
regulations with respect to such bank accounts, not inconsistent with the
provisions of these By-laws, as it may deem expedient. For the purpose of
deposit and for the purpose of collection for the account of the Corporation,
checks, drafts and other orders for the payment of money which are payable to
the order of the Corporation shall be endorsed, assigned and delivered by such
person or persons and in such manner as may from time to time be authorized by
the Board of Directors.
Section 4. Securities Held By The Corporation. Unless otherwise
provided by resolution adopted by the Board of Directors, the Board or any
officer designated by the Board may from time to time appoint an attorney or
attorneys, or an agent or agents, to exercise in the name and on behalf of the
Corporation the powers and rights to vote or consent which the Corporation may
have as the holder of stock or other securities in any other corporation; and
the Board or such officer may instruct the person or persons so appointed as to
the manner of exercising such powers and rights; and the Board or such officer
may execute or cause to be executed in the name and on behalf of the Corporation
and under its corporate seal (if any), or otherwise, all such written proxies,
powers of attorney or other written instruments as the Board or such officer may
deem necessary in order that the Corporation may exercise such powers and
rights.
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ARTICLE IX
SHARES AND THEIR TRANSFER
Section 1. Share Certificates. Every holder of stock represented by
certificates shall be entitled to have a certificate signed by, or in the name
of the Corporation by the President, a Vice President or the Chairman of the
Board and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Corporation, representing the number of shares
registered in certificate form. Any or all of the signatures on the certificate
may be a facsimile. [158]
Section 2. Lost, Stolen or Destroyed Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in place of
any certificate or certificates theretofore issued by the Corporation alleged to
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate for stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates, the
Board of Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost, stolen or destroyed
certificate or certificates, or his legal representative, to advertise the same
in such manner as it shall require and/or to give the Corporation a bond in such
sum as it may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate or certificates alleged to have been
lost, stolen or destroyed. [167]
Section 3. Transfers. Subject to any legal or contractual obligations
by which the Corporation is bound or to which it is a party, upon surrender to
the Corporation or the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of succession, assignment
or authority to transfer, it shall be the duty of the Corporation to issue a new
certificate to the person entitled thereto, cancel the old certificate and
record the transaction upon its books.
Section 4. Record Dates. 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 to receive payment of any dividend or other
distribution or allotment of any rights, or 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 record date
shall not precede the date upon which the resolution fixing such record date is
adopted by the Board of Directors. In the case of (a) a meeting, such record
date also shall not be more than sixty (60) nor less than ten (10) days before
the date of such meeting; (b) a consent or dissent to corporate action in
writing without a meeting, such record date also shall not be more than ten (10)
days after the date upon which such resolution is adopted by the Board of
Directors; or (c) the payment of any dividend or other distribution, allotment
of any rights, exercise of any rights in respect of any change, conversion or
exchange of stock or any other lawful action, such record date also shall not be
more than sixty (60) days prior to such 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. [213]
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Section 5. Protection of Corporation. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by the laws of Delaware.
ARTICLE X
FORM OF RECORDS
Any records maintained by the Corporation in the regular course of its
business, including its stock ledger, books of account and minute books, may be
kept in any manner authorized by the Delaware General Corporation law, including
by means of, or in the form of, any storage device or method, provided that
records so kept can be converted into clearly legible paper form within a
reasonable time. The Corporation shall so convert any records kept in such
manner upon the request of any person entitled to inspect such records pursuant
to the Delaware General Corporation Law.
ARTICLE XI
CORPORATE SEAL
The Corporation may adopt a corporate seal which, if adopted, shall
have inscribed thereon the name of the Corporation, the year of its organization
and the words "Corporate Seal, Delaware". The seal may be used by causing it or
a facsimile thereof to be impressed or affixed or reproduced or otherwise.
[122(3)]
ARTICLE XII
EMERGENCY BY-LAWS
The Board of Directors may adopt, either before or during an
emergency, as that term is defined by the Delaware General Corporation Law, any
emergency by-laws permitted by the Delaware General Corporation Law which shall
be operative only during such emergency. In the event the Board of Directors
does not adopt any such emergency by-laws, the special rules provided in the
Delaware General Corporation Law shall be applicable during an emergency as
therein defined. [110]
ARTICLE XIII
SECTION HEADINGS
The headings contained in these By-laws are for reference purposes
only and shall not be construed to be part of and shall not affect in any way
the meaning or interpretation of these By-laws. In the event of any
inconsistency between the provisions of the Certificate of Incorporation and
these By-laws, the provisions of the Certificate of Incorporation shall govern.
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ARTICLE XIV
AMENDMENTS
These By-laws may be amended or repealed as provided by the
Certificate of Incorporation. [109]
ARTICLE XV
PLAN OF REORGANIZATION
Any approval of a matter within the scope of these By-laws pursuant to
the terms of the Amended Joint Prepackaged Reorganization Plan of the
Corporation and certain subsidiaries dated September 3, 2003 (the "Plan of
Reorganization") or in the confirmation order of the Bankruptcy Court confirming
such Plan of Reorganization shall be deemed to have been approved by the Board
of Directors and the stockholders of the Corporation for all purposes under
these By-laws.
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