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8-K - EXHIBIT 8-K - SCHULMAN A INC | c19299e8vk.htm |
Exhibit 3.2
AMENDED AND RESTATED
BY-LAWS
OF
A. SCHULMAN, INC.
(Reflecting amendments through June 23, 2011)
[FOR PURPOSES OF SEC REPORTING COMPLIANCE]
ARTICLE I
Offices
Section 1. The registered office shall be in the City of Wilmington, County of New
Castle, State of Delaware.
Section 2. 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
Meetings of Stockholders
Section 1. All meetings of the stockholders for the election of directors shall be
held in the City of Akron, State of Ohio, at such place as may be fixed from time to time by the
Board of Directors, or at such other place either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors and stated in the notice of the meeting.
Meetings of stockholders for any other purpose may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual meetings of stockholders, generally shall be held on the second
Thursday of December, if not a legal holiday, and if a legal holiday, then on the next secular day
following, at 10:00 A.M., or at such other date and time as shall be designated from time to time
by the Board of Directors and stated in the notice of the meeting, at which they shall elect by
written ballot a Board of Directors, and transact such other business as may properly be brought
before the meeting.
To be properly brought before the meeting, business must be either (a) specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the Board of Directors, or
(c) otherwise properly brought before the meeting by a stockholder. In addition
to any other applicable requirements, for business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the
secretary of the corporation. To be timely, a stockholders notice must be delivered to or mailed
and received at the principal executive offices of the corporation, not less than 90 days nor more
than 120 days prior to the one year anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual meeting is called for a date
that is not within the 30 days before or after such anniversary date, notice by the stockholder in
order to be timely must be so received not later than the close of business on the 10th day
following the day on which notice of the date of the annual meeting was mailed or public disclosure
of the date of the meeting was made, whichever first occurs. A stockholders notice to the
secretary shall set forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (ii) the name and record address of
the stockholder proposing such business, (iii) the class and number of shares of the corporation
which are beneficially owned by the stockholder, and (iv) any material interest of the stockholder
in such business.
Notwithstanding anything in these by-laws to the contrary, no business shall be conducted at
the annual meeting except in accordance with the procedures set forth in this Section 2, provided,
however, that nothing in this Section 2 shall be deemed to preclude discussion by any stockholder
of any business properly brought before the annual meeting.
The presiding officer of the annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in accordance with the
provisions of this Section 2, and if he should so determine, he shall so declare to the meeting and
any such business not properly brought before the meeting shall not be transacted.
Section 3. Written notice of the annual meeting stating the place, date and hour of
the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten
nor more than fifty days before the date of the meeting.
Section 4. The officer who has charge of the stock ledger of the corporation shall
prepare and make, at least ten 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, during ordinary business hours, for a period of at least ten days prior to the meeting,
either at a place within the city where the meeting is to be held, which place shall be specified
in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the
president and shall be called by the president or secretary at the request in writing of a majority
of the Directors then in office.
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Section 6. Written notice of a special meeting stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting is called, shall be given not less than
ten nor more than fifty days before the date of the meeting, to each stockholder entitled to vote
at such meeting.
Section 7. Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice.
Section 8. The holders of a majority of the stock issued and outstanding and entitled
to vote thereat, present in person or represented by proxy, shall constitute a quorum at all
meetings of the stockholders for the transaction of business except as otherwise provided by
statute or by the certificate of incorporation. If however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to vote thereat, 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. At such adjourned meeting at which a quorum shall be present or represented any
business may be transacted which might have been transacted at the meeting as originally notified.
If the adjournment is for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by proxy shall decide
any question brought before such meeting, unless the question is one upon which by express
provision of the statutes or of the certificate of incorporation, a different vote is required in
which case such express provision shall govern and control the decision of such question.
Section 10. Unless otherwise provided in the certificate of incorporation each
stockholder shall at every meeting of the stockholders be entitled to one vote in person or by
proxy for each share of the capital stock having voting power held by such stockholder, but no
proxy shall be voted on after three years from its date, unless the proxy provides for a longer
period.
ARTICLE III
Directors
Section 1. The number of Directors shall be fixed in accordance with Article EIGHTH of
the Certificate of Incorporation.
Section 2. Vacancies in the Board of Directors shall be filled in accordance with
Article EIGHTH of the Certificate of Incorporation.
Section 3. The business of the corporation shall be managed by its Board of Directors
which may exercise all such powers of the corporation and do all such lawful acts and things as are
not by statute or by the certificate of incorporation or by these by-laws directed or required to
be exercised or done by the stockholders.
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Only persons who are nominated in accordance with the following procedures shall be eligible
for election as Directors. Nominations of persons for election to the Board of Directors at the
annual meeting or at any special meeting of stockholders called for the election of directors may
be made at a meeting of stockholders by or at the direction of the Board of Directors, including by
any nominating committee or person appointed by the Board of Directors, or by any stockholder of
the corporation entitled to vote for the election of Directors at the meeting who complies with the
notice procedures set forth in this Section 3. Such nominations, other than those made by or at the
direction of the Board of Directors, shall be made pursuant to timely notice in writing to the
secretary of the corporation. To be timely, a stockholders notice must be delivered to or mailed
and received at the principal executive offices of the corporation (a) in the case of an annual
meeting, not less than 90 days nor more than 120 days prior to the one year anniversary date of the
immediately preceding annual meeting of stockholders; provided, however, that in the event that the
annual meeting is called for a date that is not within the 30 days before or after such anniversary
date, notice by the stockholder in order to be timely must be so received not later than the close
of business on the 10th day following the day on which notice of the date of the annual meeting was
mailed or public disclosure of the date of the annual meeting was made, whichever first occurs; and
(b) in the case of a special meeting of stockholders called for the purpose of electing directors,
not later than the close of business on the 10th day following the day on which notice of the
special meeting was mailed or public disclosure of the date of the special meeting was made. Such
stockholders notice to the secretary shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a Director, (i) that persons consent to such
nomination, (ii) the name, age, business address and residence address of the person, (iii) the
principal occupation or employment of the person, (iv) the class and number of shares of capital
stock of the corporation which are beneficially owned by the person and (v) any other information
relating to the person that is required to be disclosed in solicitations for proxies for election
of Directors pursuant to Section 14 under the Securities Exchange Act of 1934, as amended (the
Exchange Act), and the rules and regulations promulgated thereunder, and (b) as to the
stockholder giving the notice (i) the name and record address of such stockholder, (ii) the class
and number of shares of capital stock of the corporation which are beneficially owned by the
stockholder, (iii) a description of all arrangements and understandings between such stockholder
and each proposed nominee and any other person (including his name and address) pursuant to which
the nomination(s) are to be made by such stockholder, (iv) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filing required to be made in connection with solicitations of
proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. The corporation may require any proposed nominee to furnish
such other information as may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as Director of the corporation. No person shall be
eligible for election as a Director of the corporation unless nominated in accordance with the
procedures set forth herein.
The presiding officer of the meeting shall, if the facts warrant, determine and declare to the
meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
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At each meeting of the stockholders held for the election of Directors, a person nominated in
accordance with the foregoing procedure shall be elected to the Board of Directors if the votes
cast for such nominees election exceed the votes withheld from such nominees election; provided,
however, that if there are more persons nominated than the number of Directors to be elected at
such meeting, then the persons receiving the greatest number of votes cast shall be elected as the
Directors.
Meetings of the Board of Directors
Section 4. The Board of Directors of the corporation may hold meetings, both regular
and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected Board of Directors shall be held at
such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no
notice of such meeting shall be necessary to the newly elected directors in order legally to
constitute the meeting, provided a quorum shall be present. In the event of the failure of the
stockholders to fix the time or place of such first meeting of the newly elected Board of
Directors, or in the event such meeting is not held at the time and place so fixed by the
stockholders, the meeting may be held at such time and place as shall be specified in a notice
given as hereinafter provided for special meetings of the Board of Directors, or as shall be
specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the Board of Directors may be held without notice at
such time and at such place as shall from time to time be determined by the board.
Section 7. Special meetings of the board may be called by the president on two days
notice to each director, either personally or by mail or by telegram: special meetings shall be
called by the president or secretary in like manner and on like notice on the written request of
two directors.
Section 8. At all meetings of the board a majority of the directors shall constitute a
quorum for the transaction of business and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of the board of directors, except as may be
otherwise specifically provided by statute or by the certificate of incorporation. If a quorum
shall not be present at any meeting of the Board of Directors, the directors present at any meeting
of the Board may adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation or these
by-laws, 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 committee,
as the case may be, consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the board or committee.
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Committees of Directors
Section 10. 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 one or more of the
directors of the corporation. 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.
Any such committee, to the extent provided in the resolution of the Board of Directors, shall have
and may exercise all 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 to be
affixed to all papers which may require it, but no such committee shall have the power or authority
in reference to amending the certificate of incorporation, adopting an agreement or merger or
consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the corporations property and assets, recommending to the stockholders a dissolution of the
corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and,
unless the resolution or the certificate of incorporation expressly so provide, no such committee
shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such
committee or committees shall have such name or names as may be determined from time to by
resolution adopted by the Board of Directors.
Section 11. Each committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
Compensation of Directors
Section 12. Unless otherwise restricted by the certificate of incorporation, the Board
of Directors shall have the authority to fix the compensation of directors. The directors may be
paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be
paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
ARTICLE IV
Notices
Section 1. Whenever, under the provisions of the statutes or of the certificate of
incorporation or of these by-laws, notice is required to be given to any director or stockholder,
it shall not be construed to mean personal notice, but 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, with postage thereon prepaid, and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States mail. Notice to directors may also be given
by telegram.
Section 2. Whenever any notice is required to be given, under the provisions of the
statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing,
signed by the person or persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
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ARTICLE V
Officers
Section 1. The officers of the corporation shall be chosen by the Board of Directors
and shall be a president, a vice president, a secretary and a treasurer. The Board of Directors may
also choose a Chairman of the Board, additional vice presidents, and one or more assistant
secretaries and assistant treasurers. Any number of offices may be held by the same person, unless
the certificates of incorporation or these by-laws otherwise provide.
Section 2. The Board of Directors at its first meeting after each annual meeting of
stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer.
Section 3. The Board of Directors may appoint such other officers and agents as it
shall deem necessary who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the corporation shall be fixed
by the Board of Directors.
Section 5. The officers of the corporation shall hold office until their successors
are chosen and qualify. Any officer elected or appointed by the Board of Directors may be removed
at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring
in any office of the corporation shall be filed by the Board of Directors.
Chairman of the Board
Section 6. The Chairman of the Board, if chosen (or if no such officer is chosen, the
President) shall preside at all meetings of the Board of Directors and shall perform such other
duties as may from time to time be designated by the Board of Directors.
The President
Section 7. The President shall be the chief executive officer of the corporation,
shall preside at all meetings of the stockholders and, in the absence of the Chairman of the Board,
at meetings of the Board of Directors, shall have general and active management of the business of
the corporation and shall see that all orders and resolutions of the Board of Directors are carried
into effect.
Section 8. He shall execute bonds, mortgages and other contracts requiring a seal,
under the seal of the corporation, except where required or permitted by law to be otherwise signed
and executed and except where the signing and execution thereof shall be expressly delegated by the
Board of Directors to some other officer or agent of the corporation.
The Vice Presidents
Section 9. In the absence of the President or in the event of his inability or refusal
to act, the Vice President (or in the event there be more than one Vice President, the Vice
Presidents in the order designated, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. The Vice Presidents shall
perform such other duties and have such other powers as the Board of Directors may from tine to
time prescribe.
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The Secretary and Assistant Secretary
Section 10. The secretary shall attend all meetings of the Board of Directors and all
meetings of the stockholders and record all the proceedings of the meetings of the corporation and
of the Board of Directors in a book to be kept for that purpose and shall perform like duties for
the standing committees when required. He shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or President, under whose supervision he
shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant
secretary, shall have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by his signature or by the signature of such assistant secretary. The
Board of Directors may give general authority to any other officer to affix the seal of the
corporation and to attest the affixing by his signature.
Section 11. The assistant secretary, or if there be more than one, the assistant
secretaries in the order determined by the Board of Directors (or if there be no such
determination, then in the order of their election), shall, in the absence of the secretary or in
the event of his inability or refusal to act, perform the duties and exercise the powers of the
secretary and shall perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
Treasurer and Assistant Treasurers
Section 12. The treasurer shall have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and disbursements in books belonging to the
corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the corporation in such depositories as may be designated by the Board of Directors.
Section 13. He shall disburse the funds of the corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors, at its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as treasurer and of the financial condition of the
corporation.
Section 14. If required by the Board of Directors, he shall give the corporation a
bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall
be satisfactory to the Board of Directors for the faithful performance of the duties of his office
and for the restoration to the corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in
his possession or under his control belonging to the corporation.
Section 15. The assistant treasurer, or if there shall be more than one, the assistant
treasurers in the order determined by the Board of Directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the treasurer or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the treasurer
and shall perform such other duties and have such other powers as the Board of Directors may
from time to time prescribe.
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ARTICLE VI
Indemnification of Officers, Directors
and Appointees: Insurance
and Appointees: Insurance
Section 1. To the extent permitted by the Certificate of Incorporation and the laws of
the State of Delaware, the corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact that he is or was a
director, officer or appointee of the Board of Directors of the corporation, or is or was serving
at the request of the corporation as a director, officer, or such appointee in 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 to 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 contender 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, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. If a claim under Section 1 is not paid in full by the corporation within 90
days after a written claim has been received by the corporation, the claimant may at any time
thereafter bring a 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 has been tendered to the corporation) that the claimant
has not met the standards of conduct which make it permissible under the Delaware General
Corporation Law 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 Delaware General Corporation Law, nor an actual determination by the corporation (including
its Board of Directors, independent legal counsel, or its stockholders) that the claimant had not
met such applicable standard of conduct, shall be a defense to the action or create a presumption
that claimant had not met the applicable standard of conduct.
Section 3. Expenses incurred by an officer or director in defending a civil or
criminal action, suit or proceeding shall be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be determined that he is
not entitled to be indemnified by the corporation as authorized in this section. Such expenses
incurred by other employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
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Section 4. The corporation may purchase and maintain insurance on behalf of any person
who is or was a director or officer of the corporation, or is or was serving as appointee of the
Board of Directors, or is or was serving at the request of the corporation in any such capacity in
another corporation, partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him against such liability
under the provision of this section.
ARTICLE VII
Certificates of Stock
Section 1. Shares of capital stock in the corporation may be certificated or
uncertificated as provided under the General Corporate Law of the State of Delaware; provided,
however, that every holder of stock in the corporation, upon written request to the transfer agent
or registrar of the corporation, shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the chairman or vice chairman of the Board of Directors, or the President or
a Vice President and the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the corporation, certifying the number of shares owned by him in the corporation.
Section 2. If the corporation shall be authorized to issue more than one class of
stock or more than one series of any class, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in
full or summarized on the face or back of the certificate which the corporation shall issue to
represent such class or series of stock, provided that, except as otherwise provided in Section 202
of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set
forth on fact or back of the certificate which the corporation shall issue to represent such class
or series of stock, a statement that the corporation will furnish without charge to each
stock-holder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
Section 3. Where a certificate is countersigned (1) by a transfer agent other than the
corporation or its employee, or (2) by a registrar other than the corporation or its employee, any
other signature on the certificate may be facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a 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 he were such officer, transfer agent or
registrar at the date of issue.
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Lost Certificates
Section 4. 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 this certificate of 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 alleged to have been
lost, stolen or destroyed.
Transfers of Stock
Section 5. 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.
Fixing Record Date
Section 6. 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 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 shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for the adjourned meeting.
Registered Stockholders
Section 7. 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.
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ARTICLE VIII
General Provisions
Dividends
Section 1. Dividends upon the capital stock of the corporation, subject to the
provisions of the certificate of incorporation, if any, may be declared by the Board of Directors
at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or
in shares of the capital stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any funds of
the corporation available for dividends such sum or sums as the directors from time to time, in
their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the corporation, or for such
purpose as the directors shall think conducive to the interest of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was created.
Annual Statement
Section 3. The Board of Directors shall present at each annual meeting, and at any
special meeting of the stockholders when called for by vote of the stockholders, a full and clear
statement of the business and condition of the corporation.
Checks
Section 4. All checks or demands for money and notes of the corporation shall be
signed by such officer or officers or such other person or persons as the Board of Directors may
from time to time designate.
Fiscal Year
Section 5. The fiscal year of the corporation shall be fixed by resolution of the
Board of Directors.
Seal
Section 6. The corporate seal 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.
ARTICLE IX
Amendments
Section 1. These by-laws may be altered, amended or repealed or new By-Laws may be
adopted by the stockholders or by the Board of Directors at any regular meeting of
the stockholders or of the Board of Directors or at any special meeting of the stockholders or
of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new
By-Laws be contained in the notice of such special meeting; provided, however, that notwithstanding
that a lesser vote or no vote may be specified by law, the Certificate of Incorporation or these
By-Laws, Section. 5 of Article II, Sections 1 and 2 of Article III and this Article IX of these
By-Laws may be amended, altered or repealed only by (1) the affirmative vote of the holders of not
less than 80% of the outstanding shares of capital stock of the Corporation entitled to, vote
generally in the election of Directors, voting together as a single class, or (2) the vote not less
than two-thirds of the Directors then in office.
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