Exhibit 3.1
THIRD
AMENDED AND RESTATED
BY-LAWS
OF
CASELLA WASTE SYSTEMS, INC.
Effective: February 26, 2009
CASELLA WASTE SYSTEMS,
INC.
BY-LAWS
TABLE OF CONTENTS
ARTICLE 1 Stockholders
|
1
|
1.1.
|
Place of Meetings
|
1
|
1.2.
|
Annual Meeting
|
1
|
1.3.
|
Special Meetings
|
1
|
1.4.
|
Notice of Meetings
|
1
|
1.5.
|
Voting List
|
1
|
1.6.
|
Quorum
|
2
|
1.7.
|
Adjournments
|
2
|
1.8.
|
Voting and Proxies
|
2
|
1.9.
|
Action at Meeting
|
2
|
1.10.
|
Notice of Business at Annual Meetings.
|
2
|
1.11.
|
Action without Meeting
|
5
|
1.12.
|
Nomination of Directors.
|
5
|
1.13.
|
Conduct of Meetings.
|
7
|
|
|
|
ARTICLE 2 - Directors
|
8
|
2.1.
|
General Powers
|
8
|
2.2.
|
Number of Directors
|
9
|
2.3.
|
Classes of Directors
|
9
|
2.4.
|
Election of Directors
|
9
|
2.5.
|
Terms of Office
|
9
|
2.6.
|
Allocation of Directors Among Classes in the Event
of Increases or Decreases in the Number of Directors
|
9
|
2.7.
|
Tenure
|
10
|
2.8.
|
Vacancies
|
10
|
2.9.
|
Quorum
|
10
|
2.10.
|
Action at Meeting
|
10
|
2.11.
|
Removal
|
10
|
2.12.
|
Resignation
|
10
|
2.13.
|
Regular Meetings
|
10
|
2.14.
|
Special Meetings
|
10
|
2.15.
|
Notice of Special Meetings
|
11
|
2.16.
|
Meetings by Telephone Conference Calls
|
11
|
2.17.
|
Action by Consent
|
11
|
2.18.
|
Committees
|
11
|
2.19.
|
Compensation of Directors
|
11
|
|
|
|
ARTICLE 3 Officers
|
12
|
3.1.
|
Enumeration
|
12
|
i
3.2.
|
Election
|
12
|
3.3.
|
Qualification
|
12
|
3.4.
|
Tenure
|
12
|
3.5.
|
Resignation and Removal
|
12
|
3.6.
|
Vacancies
|
12
|
3.7.
|
Chairman of the Board and Vice-Chairman of the Board
|
12
|
3.8.
|
Chief Executive Officer
|
13
|
3.9.
|
Vice Presidents
|
13
|
3.10.
|
Secretary and Assistant Secretaries
|
13
|
3.11.
|
Treasurer and Assistant Treasurers
|
13
|
3.12.
|
Salaries
|
14
|
|
|
|
ARTICLE 4 Capital Stock
|
14
|
4.1.
|
Issuance of Stock
|
14
|
4.2.
|
Certificates of Stock
|
14
|
4.3.
|
Transfers
|
15
|
4.4.
|
Lost, Stolen or Destroyed Certificates
|
15
|
4.5.
|
Record Date
|
15
|
|
|
|
ARTICLE 5 - General Provisions
|
16
|
5.1.
|
Fiscal Year
|
16
|
5.2.
|
Corporate Seal
|
16
|
5.3.
|
Waiver of Notice
|
16
|
5.4.
|
Voting of Securities
|
16
|
5.5.
|
Evidence of Authority
|
16
|
5.6.
|
Certificate of Incorporation
|
16
|
5.7.
|
Transactions with Interested Parties
|
16
|
5.8.
|
Severability
|
17
|
5.9.
|
Pronouns
|
17
|
|
|
|
ARTICLE 6 - Amendments
|
17
|
6.1.
|
By the Board of Directors
|
17
|
6.2.
|
By the Stockholders
|
17
|
ii
BY-LAWS
OF
CASELLA WASTE SYSTEMS,
INC.
ARTICLE 1 -
Stockholders
1.1.
Place
of Meetings
. All meetings of
stockholders shall be held at such place within or without the State of
Delaware as may be designated from time to time by the Board of Directors or
the Chief Executive Officer or, if not so designated, at the registered office
of the corporation.
1.2.
Annual
Meeting
. The annual meeting of
stockholders for the election of directors and for the transaction of such
other business as may properly be brought before the meeting shall be held on a
date to be fixed by the Board of Directors or the Chief Executive Officer
(which date shall not be a legal holiday in the place where the meeting is to
be held) at the time and place to be fixed by the Board of Directors or the
Chief Executive Officer and stated in the notice of the meeting. If no annual meeting is held in accordance
with the foregoing provisions, the Board of Directors shall cause the meeting
to be held as soon thereafter as convenient.
If no annual meeting is held in accordance with the foregoing
provisions, a special meeting may be held in lieu of the annual meeting, and
any action taken at that special meeting shall have the same effect as if it
had been taken at the annual meeting, and in such case all references in these
By-laws to the annual meeting of the stockholders shall be deemed to refer to
such special meeting.
1.3.
Special
Meetings
. Special meetings of
stockholders may be called at any time by the Chief Executive Officer or by the
Chairman of the Board. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
1.4.
Notice
of Meetings
. Except as otherwise
provided by law, written notice of each meeting of stockholders, whether annual
or special, shall be given not less than 10 nor more than 60 days before the
date of the meeting to each stockholder entitled to vote at such meeting. The notices of all meetings shall state the
place, date and hour of the meeting. The
notice of a special meeting shall state, in addition, the purpose or purposes
for which the meeting is called. If
mailed, notice is given when deposited in the United States mail, postage
prepaid, directed to the stockholder at his address as it appears on the
records of the corporation.
1.5.
Voting
List
. The officer who has charge of
the stock ledger of the corporation shall prepare, at least 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,
during ordinary business hours, for a period of at least 10 days prior to the
meeting, at a place within the city 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 of the meeting, and may be
inspected by any stockholder who is present.
1.6.
Quorum
. Except as otherwise provided by law, the
Certificate of Incorporation or these By-laws, the holders of shares
representing a majority of the votes entitled to be cast on matters other than
the election of the Class A Director, present in person or represented by
proxy, shall constitute a quorum for the transaction of business; provided,
however, that a quorum shall only be deemed to be present for purposes of the
election of the Class A Director if the holders of shares representing a
majority of the votes entitled to be cast by the holders of the Class A
Common Stock are present or represented by proxy.
1.7.
Adjournments
. Any meeting of stockholders may be adjourned
to any other time and to any other place at which a meeting of stockholders may
be held under these By-laws by the stockholders present or represented at the
meeting and entitled to vote, although less than a quorum, or, if no stockholder
is present, by any officer entitled to preside at or to act as Secretary of
such meeting. It shall not be necessary
to notify any stockholder of any adjournment of less than 30 days if the time
and place of the adjourned meeting are announced at the meeting at which
adjournment is taken, unless after the adjournment a new record date is fixed
for the adjourned meeting. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
1.8.
Voting
and Proxies
. Each stockholder shall
have one vote for each share of stock entitled to vote held of record by such
stockholder and a proportionate vote for each fractional share so held, unless
otherwise provided in the Certificate of Incorporation. Each stockholder of record entitled to vote
at a meeting of stockholders, or to express consent or dissent to corporate
action in writing without a meeting, may vote or express such consent or
dissent in person or may authorize another person or persons to vote or act for
him by written proxy executed by the stockholder or his authorized agent and
delivered to the Secretary of the corporation.
No such proxy shall be voted or acted upon after three years from the date
of its execution, unless the proxy expressly provides for a longer period.
1.9.
Action
at Meeting
. When a quorum is present
at any meeting, the holders of shares of stock representing a majority of the
votes cast on a matter (or if there are two or more classes of stock entitled
to vote as separate classes, then in the case of each such class, the holders
of shares of stock of that class representing a majority of the votes cast on a
matter) shall decide any matter to be voted upon by the stockholders at such
meeting, except when a different vote is required by express provision of law,
the Certificate of Incorporation or these By-Laws. Except as otherwise provided by these
By-laws, when a quorum is present at any meeting, any election by stockholders
shall be determined by a plurality of the votes cast on the election.
1.10.
Notice of Business at Annual Meetings
.
(a) At
any annual meeting of the stockholders, only such business shall be conducted
as shall have been properly brought before the meeting. To be properly brought before an annual
meeting, business must be (1) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (2) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or (3) properly
2
brought
before the meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, (i) if
such business relates to the nomination of a person for election as a director
of the corporation, the procedures in Section 1.12 must be complied with
and (ii) if such business relates to any other matter, the business must
constitute a proper matter under Delaware law for stockholder action and the
stockholder must (x) have given timely notice thereof in writing to the
Secretary in accordance with the procedures in Section 1.10(b), (y) be
a stockholder of record on the date of the giving of such notice and on the
record date for the determination of stockholders entitled to vote at such
annual meeting and (z) be entitled to vote at such annual meeting.
(b) To
be timely, a stockholders notice must be received in writing by the Secretary
at the principal executive offices of the corporation not less than 90 days nor
more than 120 days prior to the first anniversary of the preceding years
annual meeting; provided, however, that in the event that the date of the
annual meeting is advanced by more than 20 days, or delayed by more than 60
days, from the first anniversary of the preceding years annual meeting, a
stockholders notice must be so received not earlier than the 120th day prior
to such annual meeting and not later than the close of business on the later of
(A) the 90th day prior to such annual meeting and (B) the tenth day
following the day on which notice of the date of such annual meeting was mailed
or public disclosure of the date of such annual meeting was made, whichever
first occurs. In no event shall the
adjournment or postponement of an annual meeting (or the public announcement
thereof) commence a new time period (or extend any time period) for the giving
of a stockholders notice.
The stockholders notice to the Secretary shall set
forth: (A) as to each matter the
stockholder proposes to bring before the annual meeting (1) a brief
description of the business desired to be brought before the annual meeting, (2) the
text of the proposal (including the exact text of any resolutions proposed for
consideration and, in the event that such business includes a proposal to amend
the By-laws, the exact text of the proposed amendment), and (3) the
reasons for conducting such business at the annual meeting, and (B) as to
the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the proposal is being made (1) the name and address of such
stockholder, as they appear on the corporations books, and of such beneficial
owner, (2) the class and series and number of shares of stock of the
corporation that are, directly or indirectly, owned, beneficially or of record,
by such stockholder and such beneficial owner, (3) a description of any
material interest of such stockholder or such beneficial owner and the
respective affiliates and associates of, or others acting in concert with, such
stockholder or such beneficial owner in such business, (4) a description
of any agreement, arrangement or understanding between such stockholder and/or
such beneficial owner and any other person or persons (including their names)
in connection with the proposal of such business or who may participate in the
solicitation of proxies in favor of such proposal, (5) a description of
any agreement, arrangement or understanding (including any derivative or short
positions, swaps, profit interests, options, warrants, stock appreciation or
similar rights, hedging transactions, and borrowed or loaned shares) that has
been entered into by, or on behalf of, such stockholder or such beneficial
owner, the effect or intent of which is to mitigate loss to, manage risk or
benefit of share price changes for, or increase or decrease the voting power
of, such stockholder or such beneficial owner with respect to shares of stock
of the corporation, (6) any other information relating to such stockholder
and such beneficial owner that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with
3
solicitations
of proxies for the business proposed pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder, (7) a
representation that such stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the meeting and (8) a
representation whether such stockholder and/or such beneficial owner intends or
is part of a group which intends (x) to deliver a proxy statement and/or
form of proxy to holders of at least the percentage of the corporations
outstanding capital stock required to approve or adopt the proposal (and such
representation shall be included in any such proxy statement and form of proxy)
and/or (y) otherwise to solicit proxies from stockholders in support of
such proposal (and such representation shall be included in any such
solicitation materials). Not later than
10 days after the record date for the meeting, the information required by
Items (A)(3) and (B)(1)-(6) of the prior sentence shall be
supplemented by the stockholder giving the notice to provide updated
information as of the record date.
Notwithstanding anything in these By-laws to the contrary, no business
shall be conducted at any annual meeting of stockholders except in accordance
with the procedures in this Section 1.10; provided that any stockholder
proposal which complies with Rule 14a-8 of the proxy rules (or any
successor provision) promulgated under the Exchange Act and is to be included
in the corporations proxy statement for an annual meeting of stockholders
shall be deemed to comply with the notice requirements of this Section 1.10. A stockholder shall not have complied with
this Section 1.10(b) if the stockholder (or beneficial owner, if any,
on whose behalf the proposal is made) solicits or does not solicit, as the case
may be, proxies in support of such stockholders proposal in contravention of
the representations with respect thereto required by this Section 1.10.
(c) The
chairman of any annual meeting shall have the power and duty to determine
whether business was properly brought before the annual meeting in accordance
with the provisions of this Section 1.10 (including whether the
stockholder or beneficial owner, if any, on whose behalf the proposal is made
solicited (or is part of a group which solicited) or did not so solicit, as the
case may be, proxies in support of such stockholders proposal in compliance
with the representation with respect thereto required by this Section 1.10),
and if the chairman should determine that business was not properly brought
before the annual meeting in accordance with the provisions of this Section 1.10,
the chairman shall so declare to the meeting and such business shall not be
brought before the annual meeting.
(d) Except
as otherwise required by law, nothing in this Section 1.10 shall obligate
the corporation or the Board of Directors to include in any proxy statement or
other stockholder communication distributed on behalf of the corporation or the
Board of Directors information with respect to any proposal submitted by a
stockholder.
(e) Notwithstanding
the foregoing provisions of this Section 1.10, if the stockholder (or a
qualified representative of the stockholder) does not appear at the annual
meeting to present business, such business shall not be considered,
notwithstanding that proxies in respect of such business may have been received
by the corporation.
(f) For
purposes of this Section 1.10, the terms qualified representative of the
stockholder and public disclosure shall have the same meaning as in Section 1.12.
1.11.
Action
without Meeting
. Stockholders of the
corporation may not take any action by written consent in lieu of a meeting.
4
1.12.
Nomination of Directors
.
(a) Except
for (1) any directors entitled to be elected by the holders of preferred
stock, (2) any directors elected in accordance with Section 2.8
hereof by the Board of Directors to fill a vacancy or newly-created
directorship or (3) as otherwise required by applicable law or stock
exchange regulation, at any meeting of stockholders, only persons who are nominated
in accordance with the procedures in this Section 1.12 shall be eligible
for election as directors. Nomination
for election to the Board of Directors at a meeting of stockholders may be made
(i) by or at the direction of the Board of Directors or (ii) by any
stockholder of the corporation who (x) timely complies with the notice
procedures in Section 1.12(b), (y) is a stockholder of record on the
date of the giving of such notice and on the record date for the determination
of stockholders entitled to vote at such meeting and (z) is entitled to
vote at such meeting.
(b) To
be timely, a stockholders notice must be received in writing by the Secretary
at the principal executive offices of the corporation as follows: (i) in
the case of an election of directors at an annual meeting of stockholders, not
less than 90 days nor more than 120 days prior to the first anniversary of the
preceding years annual meeting; provided, however, that in the event that the
date of the annual meeting is advanced by more than 20 days, or delayed by more
than 60 days, from the first anniversary of the preceding years annual
meeting, a stockholders notice must be so received not earlier than the 120th
day prior to such annual meeting and not later than the close of business on
the later of (A) the 90th day prior to such annual meeting and (B) the
tenth day following the day on which notice of the date of such annual meeting
was mailed or public disclosure of the date of such annual meeting was made,
whichever first occurs; or (ii) in the case of an election of directors at
a special meeting of stockholders, provided that the Board of Directors, the
Chairman of the Board or the Chief Executive Officer has determined, in
accordance with Section 1.3, that directors shall be elected at such
special meeting and provided further that the nomination made by the
stockholder is for one of the director positions that the Board of Directors,
the Chairman of the Board or the Chief Executive Officer, as the case may be,
has determined will be filled at such special meeting, not earlier than the
120th day prior to such special meeting and not later than the close of
business on the later of (x) the 90th day prior to such special meeting
and (y) the tenth day following the day on which notice of the date of
such special meeting was mailed or public disclosure of the date of such
special meeting was made, whichever first occurs. In no event shall the adjournment or
postponement of a meeting (or the public announcement thereof) commence a new time
period (or extend any time period) for the giving of a stockholders notice.
The stockholders notice to the Secretary shall set
forth: (A) as to each proposed nominee (1) such persons name, age,
business address and, if known, residence address, (2) such persons
principal occupation or employment, (3) the class and series and number of
shares of stock of the corporation that are, directly or indirectly, owned,
beneficially or of record, by such person, (4) a description of all direct
and indirect compensation and other material monetary agreements, arrangements
and understandings during the past three years, and any other material
relationships, between or among (x) the stockholder, the beneficial owner,
if any, on whose behalf the nomination is being made and the respective
affiliates and associates of, or others acting in concert with, such
stockholder and such beneficial owner, on the one hand, and (y) each
5
proposed
nominee, and his or her respective affiliates and associates, or others acting
in concert with such nominee(s), on the other hand, including all information
that would be required to be disclosed pursuant to Item 404 of Regulation S-K
if the stockholder making the nomination and any beneficial owner on whose
behalf the nomination is made or any affiliate or associate thereof or person
acting in concert therewith were the registrant for purposes of such Item and
the proposed nominee were a director or executive officer of such registrant,
and (5) any other information concerning such person that must be
disclosed as to nominees in proxy solicitations pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the Exchange Act); and
(B) as to the stockholder giving the notice and the beneficial owner, if
any, on whose behalf the nomination is being made (1) the name and address
of such stockholder, as they appear on the corporations books, and of such
beneficial owner, (2) the class and series and number of shares of stock
of the corporation that are, directly or indirectly, owned, beneficially or of
record, by such stockholder and such beneficial owner, (3) a description
of any agreement, arrangement or understanding between such stockholder and/or
such beneficial owner and each proposed nominee and any other person or persons
(including their names) pursuant to which the nomination(s) are being made
or who may participate in the solicitation of proxies in favor of electing such
nominee(s), (4) a description of any agreement, arrangement or
understanding (including any derivative or short positions, swaps, profit
interests, options, warrants, stock appreciation or similar rights, hedging
transactions, and borrowed or loaned shares) that has been entered into by, or
on behalf of, such stockholder or such beneficial owner, the effect or intent
of which is to mitigate loss to, manage risk or benefit of share price changes
for, or increase or decrease the voting power of, such stockholder or such
beneficial owner with respect to shares of stock of the corporation, (5) any
other information relating to such stockholder and such beneficial owner that
would be required to be disclosed in a proxy statement or other filings
required to be made in connection with solicitations of proxies for the
election of directors in a contested election pursuant to Section 14 of
the Exchange Act and the rules and regulations promulgated thereunder, (6) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the person(s) named in its notice and (7) a
representation whether such stockholder and/or such beneficial owner intends or
is part of a group which intends (x) to deliver a proxy statement and/or
form of proxy to holders of at least the percentage of the corporations
outstanding capital stock reasonably believed by such stockholder or such
beneficial owner to be sufficient to elect the nominee (and such representation
shall be included in any such proxy statement and form of proxy) and/or (y) otherwise
to solicit proxies from stockholders in support of such nomination (and such
representation shall be included in any such solicitation materials). Not later than 10 days after the record date
for the meeting, the information required by Items (A)(1)-(5) and (B)(1)-(5) of
the prior sentence shall be supplemented by the stockholder giving the notice
to provide updated information as of the record date. In addition, to be effective, the stockholders
notice must be accompanied by the written consent of the proposed nominee to
serve as a director if elected. The
corporation may require any proposed nominee to furnish such other information
as may reasonably be required to determine the eligibility of such proposed
nominee to serve as a director of the corporation or whether such nominee would
be independent under applicable Securities and Exchange Commission and stock
exchange rules and the corporations publicly disclosed corporate
governance guidelines. A stockholder
shall not have complied with this Section 1.12(b) if the stockholder
(or beneficial owner, if any, on whose behalf the nomination is made) solicits
or does not solicit, as the case may be, proxies in support of such stockholders
6
nominee
in contravention of the representations with respect thereto required by this Section 1.12.
(c) The
chairman of any meeting shall have the power and duty to determine whether a
nomination was made in accordance with the provisions of this Section 1.12
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination is made solicited (or is part of a group which solicited) or did
not so solicit, as the case may be, proxies in support of such stockholders
nominee in compliance with the representations with respect thereto required by
this Section 1.12), and if the chairman should determine that a nomination
was not made in accordance with the provisions of this Section 1.12, the
chairman shall so declare to the meeting and such nomination shall not be
brought before the meeting.
(d) Except
as otherwise required by law, nothing in this Section 1.12 shall obligate
the corporation or the Board of Directors to include in any proxy statement or
other stockholder communication distributed on behalf of the corporation or the
Board of Directors information with respect to any nominee for director
submitted by a stockholder.
(e) Notwithstanding
the foregoing provisions of this Section 1.12, if the stockholder (or a
qualified representative of the stockholder) does not appear at the meeting to
present a nomination, such nomination shall not be brought before the meeting,
notwithstanding that proxies in respect of such nominee may have been received
by the corporation. For purposes of this
Section 1.12, to be considered a qualified representative of the
stockholder, a person must be authorized by a written instrument executed by
such stockholder or an electronic transmission delivered by such stockholder to
act for such stockholder as proxy at the meeting of stockholders and such
person must produce such written instrument or electronic transmission, or a
reliable reproduction of the written instrument or electronic transmission, at
the meeting of stockholders.
(f) For
purposes of this Section 1.12, public disclosure shall include
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
1.13.
Conduct
of Meetings
.
(a) Meetings
of stockholders shall be presided over by the Chairman of the Board, if any, or
in the Chairmans absence by the Vice Chairman of the Board, if any, or in the
Vice Chairmans absence by the Chief Executive Officer, or in the Chief
Executive Officers absence, by the President, or in the Presidents absence by
a Vice President, or in the absence of all of the foregoing persons by a
chairman designated by the Board of Directors.
The Secretary shall act as secretary of the meeting, but in the
Secretarys absence the chairman of the meeting may appoint any person to act
as secretary of the meeting.
(b) The
Board of Directors may adopt by resolution such rules, regulations and
procedures for the conduct of any meeting of stockholders of the corporation as
it shall deem appropriate including, without limitation, such guidelines and
procedures as it may deem appropriate regarding the participation by means of
remote communication of stockholders and
7
proxyholders
not physically present at a meeting.
Except to the extent inconsistent with such rules, regulations and
procedures as adopted by the Board of Directors, the chairman of any meeting of
stockholders shall have the right and authority to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such
chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board of Directors or prescribed by the chairman of the
meeting, may include, without limitation, the following: (i) the
establishment of an agenda or order of business for the meeting; (ii) rules and
procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the
meeting to stockholders of record of the corporation, their duly authorized and
constituted proxies or such other persons as shall be determined; (iv) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations
on the time allotted to questions or comments by participants. Unless and to the extent determined by the
Board of Directors or the chairman of the meeting, meetings of stockholders
shall not be required to be held in accordance with the rules of
parliamentary procedure.
(c) The
chairman of the meeting shall announce at the meeting when the polls for each
matter to be voted upon at the meeting will be opened and closed. After the polls close, no ballots, proxies or
votes or any revocations or changes thereto may be accepted.
(d) In
advance of any meeting of stockholders, the Board of Directors, the Chairman of
the Board, the Chief Executive Officer or the President shall appoint one or
more inspectors of election to act at the meeting and make a written report
thereof. One or more other persons may
be designated as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is
present, ready and willing to act at a meeting of stockholders, the chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by law, inspectors
may be officers, employees or agents of the corporation. Each inspector, before entering upon the
discharge of such inspectors duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of such inspectors ability. The
inspector shall have the duties prescribed by law and shall take charge of the
polls and, when the vote is completed, shall make a certificate of the result
of the vote taken and of such other facts as may be required by law. Every vote taken by ballots shall be counted
by a duly appointed inspector or duly appointed inspectors.
ARTICLE 2 -
Directors
2.1.
General
Powers
. The business and affairs of
the corporation shall be managed by or under the direction of a Board of
Directors, who may exercise all of the powers of the corporation except as
otherwise provided by law or the Certificate of Incorporation. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2.2.
Number
of Directors
. The number of
directors which shall constitute the whole Board of Directors shall be
determined by resolution of a majority of the Board of Directors, but in no
event shall be less than three. The
number of directors may be decreased at any time and from time to time by a
majority of the directors then in office, but only to eliminate vacancies
8
existing
by reason of the death, resignation, removal or expiration of the term of one
or more directors. The directors shall
be elected at the annual meeting of the stockholders by such stockholders as
have the right to vote on such election.
Directors need not be stockholders of the corporation.
2.3.
Classes
of Directors
. The Board of Directors
shall be and is divided into three classes:
Class I, Class II and Class III. No one class shall have more than one
director more than any other class. If a
fraction is contained in the quotient arrived at by dividing the authorized
number of directors by three, then, if such fraction is one-third, the extra
director shall be a member of Class I and, if such fraction is two-thirds,
one of the extra directors shall be a member of Class I and the other
extra director shall be a member of Class II unless otherwise provided for
from time to time by resolution adopted by a majority of the Board of
Directors. The Class A Director
shall be in Class II.
2.4.
Election
of Directors
. The holders of Class A
Common Stock, voting separately as a class, shall be entitled to elect one
director (the Class A Director).
All other directors shall be elected by the holders of the Class A
Common Stock and Class B Common Stock, if any, voting together as a single
class.
2.5.
Terms
of Office
. Each director shall serve
for a term ending on the date of the third annual meeting following the annual
meeting at which such director was elected; provided, however, that each
initial director in Class I shall serve for a term ending on the date of
the annual meeting next following the end of the Corporations fiscal year
ending April 30,1998; each initial director in Class II shall serve
for a term ending on the date of the annual meeting next following the end of
the Corporations fiscal year ending April 30,1999; and each initial
director in Class III shall serve for a term ending on the date of the
annual meeting next following the end of the Corporations fiscal year ending April 30,
2000.
2.6.
Allocation
of Directors Among Classes in the Event of Increases or Decreases in the Number
of Directors
. In the event of any
increase or decrease in the authorized number of directors, (i) each
director then serving as such shall nevertheless continue as director of the
class of which he is a member until the expiration of his current term or his
prior death, retirement or resignation and (ii) the newly created or
eliminated directorships resulting from such increase or decrease shall be
apportioned by the Board of Directors among the three classes of directors so
as to ensure that no one class has more than one director more than any other
class. To the extent possible,
consistent with the foregoing rule, any newly created directorships shall be
added to those classes whose terms of office are to expire at the latest dates
following such allocation, and any newly eliminated directorships shall be
subtracted from those classes whose terms of office are to expire at the
earliest dates following such allocation, unless otherwise provided for from
time to time by resolution adopted by a majority of the directors then in
office, although less than a quorum.
2.7.
Tenure
. Notwithstanding any provisions to the
contrary contained herein, each director shall hold office until his successor
is elected and qualified, or until his earlier death, resignation or removal.
9
2.8.
Vacancies
. Any vacancy in the Board of Directors,
however occurring, including a vacancy resulting from an enlargement of the
Board, may be filled only by a vote of a majority of the directors then in
office, although less than a quorum, or by a sole remaining director. The term
of any director elected to fill a vacancy between annual meetings will last
until the next annual meeting and until such directors successor has been
elected and qualified, or until his earlier death, resignation or removal.
2.9.
Quorum
. A majority of the total number of the whole
Board of Directors shall constitute a quorum at all meetings of the Board of
Directors. In the event one or more of
the directors shall be disqualified to vote at any meeting, then the required
quorum shall be reduced by one for each such director so disqualified;
provided, however, that in no case shall less than one-third (⅓) of the
number so fixed constitute a quorum. In
the absence of a quorum at any such meeting, a majority of the directors
present may adjourn the meeting from time to time without further notice other
than announcement at the meting, until a quorum shall be present.
2.10.
Action
at Meeting
. At any meeting of the
Board of Directors at which a quorum is present, the vote of a majority of
those present shall be sufficient to take any action, unless a different vote
is specified by law or the Certificate of Incorporation or these By-Laws.
2.11.
Removal
. Any one or more or all of the directors may
be removed, with or without cause, by the holders of shares representing at
least seventy-five percent (75%) of the votes which all the stockholders would
be entitled to cast at any election of directors or class of directors (other
than an election of the Class A Director); provided, however, that the Class A
Director may be removed only by the holders of at least seventy-five percent
(75%) of the outstanding shares of Class A Common Stock.
2.12.
Resignation
. Any director may resign by delivering his
written resignation to the corporation at its principal office or to the Chief
Executive Officer or Secretary. Such
resignation shall be effective upon receipt unless it is specified to be
effective at some other time or upon the happening of some other event.
2.13.
Regular
Meetings
. Regular meetings of the
Board of Directors may be held without notice at such time and place, either
within or without the State of Delaware, as shall be determined from time to
time by the Board of Directors; provided that any director who is absent when
such a determination is made shall be given notice of the determination;
provided further that the Board of Directors shall meet at least once during
each of the corporations fiscal quarters. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
2.14.
Special
Meetings
. Special meetings of the
Board of Directors may be held at any time and place, within or without the
State of Delaware, designated in a call by the Chairman of the Board, Chief
Executive Officer, two or more directors, or by one director in the event that
there is only a single director in office.
2.15.
Notice
of Special Meetings
. Notice of any
special meeting of directors shall be given to each director by the Secretary
or by the officer or one of the directors calling the meeting. Notice shall be duly given to each director (i) by
giving notice to such director in
10
person
or by telephone at least 48 hours in advance of the meeting, (ii) by
sending a telegram or telex, or delivering written notice by hand, to his last
known business or home address at least 48 hours in advance of the meeting, or (iii) by
mailing written notice to his last known business or home address at least 72
hours in advance of the meeting. A
notice or waiver of notice of a meeting of the Board of Directors need not
specify the purposes of the meeting.
2.16.
Meetings
by Telephone Conference Calls
.
Directors or any members of any committee designated by the directors
may participate in a meeting of the Board of Directors or such committee by
means of conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation by such means shall constitute presence in person at such
meeting.
2.17.
Action
by Consent
. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee of the Board of Directors may be taken without a meeting, if all
members of the Board or committee, as the case may be, consent to the action in
writing, and the written consents are filed with the minutes of proceedings of
the Board or committee.
2.18.
Committees
. The Board of Directors may 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. In the absence or disqualification of a
member of a committee, the member or members of the committee present at any
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. Any such committee, to the extent provided in
the resolution of the Board of Directors and subject to the provisions of the
General Corporation Law of the State of Delaware, 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. Each such committee shall keep minutes and
make such reports as the Board of Directors may from time to time request. Except as the Board of Directors may
otherwise determine, any committee may make rules for the conduct of its
business, but unless otherwise provided by the directors or in such rules, its
business shall be conducted as nearly as possible in the same manner as is
provided in these By-laws for the Board of Directors.
2.19.
Compensation
of Directors
. Directors may be paid
such compensation for their services and such reimbursement for expenses of
attendance at meetings as the Board of Directors may from time to time
determine. No such payment shall
preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE 3 -
Officers
3.1.
Enumeration
. The officers of the corporation shall consist
of a Chief Executive Officer, a Secretary, a Treasurer and such other officers
with such other titles as the Board of Directors shall determine, including a
Chairman of the Board, a Vice-Chairman of the Board,
11
and
one or more Vice Presidents, Assistant Treasurers, and Assistant
Secretaries. The Board of Directors may
appoint such other officers as it may deem appropriate.
3.2.
Election
. The Chief Executive Officer, Treasurer and
Secretary shall be elected annually by the Board of Directors at its first
meeting following the annual meeting of stockholders. Other officers may be appointed by the Board
of Directors at such meeting or at any other meeting.
3.3.
Qualification
. No officer need be a stockholder. Any two or more offices may be held by the
same person.
3.4.
Tenure
. Except as otherwise provided by law, by the
Certificate of Incorporation or by these By-laws, each officer shall hold
office until his successor is elected and qualified, unless a different term is
specified in the vote choosing or appointing him, or until his earlier death,
resignation or removal.
3.5.
Resignation
and Removal
. Any officer may resign
by delivering his written resignation to the corporation at its principal
office or to the Chief Executive Officer or Secretary. Such resignation shall be effective upon
receipt unless it is specified to be effective at some other time or upon the
happening of some other event.
Any officer may be removed at any time, with or without cause, by vote
of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer
who resigns or is removed shall have any right to any compensation as an
officer for any period following his resignation or removal, or any right to
damages on account of such removal, whether his compensation be by the month or
by the year or otherwise, unless such compensation is expressly provided in a
duly authorized written agreement with the corporation.
3.6.
Vacancies
. The Board of Directors may fill any vacancy
occurring in any office for any reason and may, in its discretion, leave
unfilled for such period as it may determine any offices other than those of
Chief Executive Officer, Treasurer and Secretary. Each such successor shall hold office for the
unexpired term of his predecessor and until his successor is elected and
qualified, or until his earlier death, resignation or removal.
3.7.
Chairman
of the Board and Vice-Chairman of the Board
. The Board of Directors may appoint a Chairman
of the Board and may designate the Chairman of the Board as Chief Executive
Officer. If the Board of Directors
appoints a Chairman of the Board, he shall perform such duties and possess such
powers as are assigned to him by the Board of Directors. If the Board of Directors appoints a
Vice-Chairman of the Board, he shall, in the absence or disability of the
Chairman of the Board, perform the duties and exercise the powers of the
Chairman of the Board and shall perform such other duties and possess such
other powers as may from time to time be vested in him by the Board of
Directors.
3.8.
Chief
Executive Officer
. The Chief
Executive Officer shall, subject to the direction of the Board of Directors,
have general charge and supervision of the business of the corporation. Unless otherwise provided by the Board of
Directors, he shall preside at all
12
meetings
of the stockholders and, if he is a director, at all meetings of the Board of
Directors. The Chief Executive Officer
shall perform such other duties and shall have such other powers as the Board
of Directors may from time to time prescribe.
3.9.
Vice
Presidents
. Any Vice President shall perform such duties
and possess such powers as the Board of Directors or the Chief Executive
Officer may from time to time prescribe.
In the event of the absence, inability or refusal to act of the Chief
Executive Officer, and, if there shall be one, the President, the Vice
President (or if there shall be more than one, the Vice Presidents in the order
determined by the Board of Directors) shall perform the duties of the Chief
Executive Officer and when so performing shall have all the powers of and be
subject to all the restrictions upon the Chief Executive Officer. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice President or any
other title selected by the Board of Directors.
3.10.
Secretary
and Assistant Secretaries
. The Secretary shall perform such duties and
shall have such powers as the Board of Directors or the Chief Executive Officer
may from time to time prescribe. In
addition, the Secretary shall perform such duties and have such powers as are
incident to the office of the secretary, including without limitation the duty
and power to give notices of all meetings of stockholders and special meetings
of the Board of Directors, to attend all meetings of stockholders and the Board
of Directors and keep a record of the proceedings, to maintain a stock ledger
and prepare lists of stockholders and their addresses as required, to be
custodian of corporate records and the corporate seal and to affix and attest
to the same on documents.
Any Assistant Secretary shall perform such duties and possess such
powers as the Board of Directors, the Chief Executive Officer or the Secretary
may from time to time prescribe. In the
event of the absence, inability or refusal to act of the Secretary, the
Assistant Secretary, (or if there shall be more than one, the Assistant
Secretaries in the order determined by the Board of Directors) shall perform
the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any
meeting of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
3.11.
Treasurer
and Assistant Treasurers
. The Treasurer shall perform such duties and
shall have such powers as may from time to time be assigned to him by the Board
of Directors or the Chief Executive Officer.
In addition, the Treasurer shall perform such duties and have such
powers as are incident to the office of treasurer, including without limitation
the duty and power to keep and be responsible for all funds and securities of
the corporation, to deposit funds of the corporation in depositories selected
in accordance with these By-laws, to disburse such funds as ordered by the
Board of Directors, to make proper accounts of such funds, and to render as
required by the Board of Directors statements of all such transactions and of
the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such
powers as the Board of Directors, the Chief Executive Officer or the Treasurer
may from time to time prescribe. In the
event of the absence, inability or refusal to act of the Treasurer, the
Assistant Treasurer, (or if
13
there shall be more than one, the Assistant Treasurers
in the order determined by the Board of Directors) shall perform the duties and
exercise the powers of the Treasurer.
3.12.
Salaries
. Officers of the corporation shall be entitled
to such salaries, compensation or reimbursement as shall be fixed or allowed
from time to time by the Board of Directors.
ARTICLE
4 -
Capital Stock
4.1.
Issuance
of Stock
. Unless otherwise voted by the stockholders
and subject to the provisions of the Certificate of Incorporation, the whole or
any part of any unissued balance of the authorized capital stock of the
corporation or the whole or any part of any unissued balance of the authorized
capital stock of the corporation held in its treasury may be issued, sold,
transferred or otherwise disposed of by vote of the Board of Directors in such
manner, for such consideration and on such terms as the Board of Directors may
determine.
4.2.
Certificates
of Stock
. Every holder of stock of the corporation
shall be entitled to have a certificate, in such form as may be prescribed by
law and by the Board of Directors, certifying the number and class of shares
owned by him in the corporation. Each
such certificate shall be signed by, or in the name of the corporation by, the
Chairman or Vice-Chairman, if any, 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. Any or all of the signatures on the
certificate may be a facsimile.
Each certificate for shares of stock which are subject to any
restriction on transfer pursuant to the Certificate of Incorporation, the
By-laws, applicable securities laws or any agreement among any number of
shareholders or among such holders and the corporation shall have conspicuously
noted on the face or back of the certificate either the full text of the
restriction or a statement of the existence of such restriction.
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 each certificate representing shares of such
class or series of stock, provided that in lieu of the foregoing requirements
there may be set forth on the face or back of each certificate representing
shares of such class or series of stock a statement that the corporation will
furnish without charge to each stockholder who so requests a copy of the full
text of 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.
4.3.
Transfers
. Except as otherwise established by rules and
regulations adopted by the Board of Directors, and subject to applicable law,
shares of stock may be transferred on the books of the corporation by the
surrender to the corporation or its transfer agent of the certificate
representing such shares properly endorsed or accompanied by a written
assignment or power of attorney properly executed, and with such proof of
authority or the authenticity of signature as
14
the
corporation or its transfer agent may reasonably require. Except as may be otherwise required by law,
by the Certificate of Incorporation or by these By-laws, the corporation shall
be entitled to treat the record holder of stock as shown on its books as the
owner of such stock for all purposes, including the payment of dividends and
the right to vote with respect to such stock, regardless of any transfer,
pledge or other disposition of such stock until the shares have been
transferred on the books of the corporation in accordance with the requirements
of these By-laws.
4.4.
Lost,
Stolen or Destroyed Certificates
. The corporation may issue a new certificate
of stock in place of any previously issued certificate alleged to have been
lost, stolen, or destroyed, upon such terms and conditions as the Board of
Directors may prescribe, including the presentation of reasonable evidence of
such loss, theft or destruction and the giving of such indemnity as the Board
of Directors may require for the protection of the corporation or any transfer
agent or registrar.
4.5.
Record
Date
. The Board of Directors may fix in advance a
date as a record date for the determination of the stockholders entitled to
notice of or to vote at any meeting of stockholders or to express consent (or
dissent) to corporate action in writing without a meeting, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action. Such
record date shall not be more than 60 nor less than 10 days before the date of
such meeting, nor more than 10 days after the date of adoption of a record date
for a written consent without a meeting, nor more than 60 days prior to any
other action to which such record date relates.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day before the day on which notice is
given, or, if notice is waived, at the close of business on the day before the
day on which the meeting is held. The
record date for determining stockholders entitled to express consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is necessary, shall be the day on which the first written consent
is properly delivered to the corporation.
The record date for determining stockholders for any other purpose shall
be at the close of business on the day on which the Board of Directors adopts
the resolution relating to such purpose.
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.
ARTICLE
5 -
General Provisions
5.1.
Fiscal
Year
. Except as from time to time otherwise
designated by the Board of Directors, the fiscal year of the corporation shall
begin on the first day of May in each year and end on the last day of April in
each year.
5.2.
Corporate
Seal
. The corporate seal shall be in such form as
shall be approved by the Board of Directors.
15
5.3.
Waiver
of Notice
. Whenever any notice whatsoever is required to
be given by law, by the Certificate of Incorporation or by these By-laws, a
waiver of such notice either in writing signed by the person entitled to such
notice or such persons duly authorized attorney, or by telegraph, cable or any
other available method, whether before, at or after the time stated in such
waiver, or the appearance of such person or persons at such meeting in person
or by proxy, shall be deemed equivalent to such notice.
5.4.
Voting
of Securities
. Except as the directors may otherwise
designate, the Chief Executive Officer or Treasurer may waive notice of, and
act as, or appoint any person or persons to act as, proxy or attorney-in-fact
for this corporation (with or without power of substitution) at, any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation.
5.5.
Evidence
of Authority
. A certificate by the Secretary, or an
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith
be conclusive evidence of such action.
5.6.
Certificate
of Incorporation
. All references in these By-laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
5.7.
Transactions
with Interested Parties
. Except as otherwise specified by the Board of
Directors, no contract or transaction between the corporation and one or more
of the directors or officers, or between the corporation and any other
corporation, partnership, association, or other organization in which one or
more of the 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 a committee of the Board of Directors which
authorizes the contract or transaction or solely because his or their votes are
counted for such purpose, if:
(1)
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;
(2)
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
(3)
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 of the
Board of Directors, 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.
16
5.8.
Severability
. Any determination that any provision of these
By-laws is for any reason inapplicable, illegal or ineffective shall not affect
or invalidate any other provision of these By-laws.
5.9.
Pronouns
. All pronouns used in these By-laws shall be
deemed to refer to the masculine, feminine or neuter, singular or plural, as
the identity of the person or persons may require.
ARTICLE
6 -
Amendments
6.1.
By
the Board of Directors
. These By-laws may be altered, amended or
repealed or new by-laws may be adopted by the affirmative vote of a majority of
the directors present at any regular or special meeting of the Board of
Directors at which a quorum is present.
6.2.
By
the Stockholders
. Subject to the following paragraph, these
By-laws may be altered, amended or repealed or new by-laws may be adopted by
the affirmative vote of the holders of shares representing a majority of the
votes which all of the stockholders would be entitled to cast at any election
of directors or class of directors (other than an election of the Class A
Director) at any regular meeting of stockholders, or at any special meeting of
stockholders, provided notice of such alteration, amendment, repeal or adoption
of new by-laws shall have been stated in the notice of such special meeting.
Notwithstanding any other provision of law, the Certificate of
Incorporation or these By-Laws (including the preceding paragraph), and
notwithstanding the fact that a lesser percentage may be specified by law, the
affirmative vote of the holders of shares representing at least 75% of the
votes which all the stockholders would be entitled to cast at any election of
directors or class of directors (other than an election of the Class A
Director) shall be required to amend or repeal, or to adopt any provision inconsistent
with, the provisions of Sections 1.10 or 1.11, the provisions of Article II,
or the provisions of this Section 6.2.
17