EXHIBIT 3(b)
BY-LAWS
OF
ILLINOIS TOOL WORKS INC.
ARTICLE I
Offices
SECTION 1. Registered Office. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
SECTION 2. Other Offices. The corporation may also have offices in Chicago,
Illinois, and offices at such other places as the Board of Directors or officers
may from time to time determine.
ARTICLE II
Stockholders
SECTION 1. Annual Meeting. The annual meeting of the stockholders shall be in
the month of April or May of each year. The place, date and time of the meeting
shall be fixed by the Board of Directors and stated in the notice of the
meeting.
SECTION 2. Special Meetings. Special meetings of the stockholders may be called
by the chairman or by a majority of the Board of Directors.
SECTION 3. Place of Meeting. The Board of Directors may designate any place,
either within or without Delaware, as the place of meeting for any meeting of
the stockholders (annual or special) called by the Board of Directors. If a
special meeting is otherwise called, the place of meeting shall be in Chicago,
Illinois as designated in the notice.
SECTION 4. Notice of Meetings. Written or printed notice stating the place, day
and hour of the meeting shall be delivered either personally or by mail, by or
at the direction of the chairman or persons calling the meeting to each
stockholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mails in a
sealed envelope addressed to the stockholder at his address as it appears on the
records of the corporation, with postage thereon prepaid.
SECTION 5. Voting of Shares by Certain Holders. Shares of stock standing in the
name of another corporation, domestic or foreign, may be voted by such officer,
agent or proxy as the by-laws of such corporation may prescribe, or, in the
absence of such provision, as the Board of Directors of such corporation may
determine.
Shares of stock standing in the name of a deceased person may be voted by his
administrator or executor, either in person or by proxy. Persons holding stock
in a fiduciary capacity shall be entitled to vote the shares so held. Persons
whose stock is pledged shall be entitled to vote, unless in the transfer by the
pledgor on the books of the corporation he has expressly empowered the pledgee
to vote thereon, in which case only the pledgee, or his proxy, may represent
such stock and vote thereon.
Shares of stock standing in the name of a receiver may be voted by such
receiver, and shares of stock held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
so to do be contained in an appropriate order of the court by which such
receiver was appointed.
SECTION 6. Fixing of Record Date. Unless any statute requires otherwise, for the
purpose of determining (a) stockholders entitled to notice of or to vote at any
meeting of stockholders, or (b) stockholders entitled to receive payment of any
dividend, or (c) stockholders, with respect to any lawful action, the Board of
Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than sixty
days and, in case of a meeting of stockholders, not less than ten days. If no
record date is fixed: (1) 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 next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; (2) the record date for determining stockholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 7. Quorum. 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, by the Certificate of
Incorporation or by these by-laws. 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 until a quorum shall be present or
represented. No notice other than an announcement at the meeting need be given
unless the adjournment is for more than thirty days or a new record date is to
be fixed for the adjourned meeting. 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.
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 or of these by-laws, a different vote is required in which case
such express provision shall govern and control the decision of such question.
SECTION 8. Proxies. At all meetings of stockholders, a stockholder may vote by
proxy executed in writing by the stockholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting. Proxies shall be valid only
with respect to the meeting or meetings and any adjournment thereof, for which
they are given.
SECTION 9. Voting. Each stockholder shall have one vote in person or by proxy
for each share of stock having voting power registered in his name on the books
of the corporation at the record date.
SECTION 10. Stockholder Nominations for Directors. Any stockholder entitled to
vote in the election of directors may nominate one or more persons for election
as directors, provided written notice of such stockholder's nomination has been
received by the Secretary of the Company not later than (i) the close of
business on the last business day of December prior to the annual meeting of
stockholders in April or May, or (ii) the close of business on the tenth day
following the date on which notice of a special meeting of stockholders is first
given to stockholders for an election of directors to be held at such meeting.
Such notice must contain: (a) the name and address of the stockholder who
intends to make the nomination; (b) the name, age, and business and residential
addresses of each person to be nominated; (c) the principal occupation or
employment of each nominee; (d) the number of shares of capital stock of the
corporation beneficially owned by each nominee; (e) a statement that the nominee
is willing to be nominated and serve as a director; and (f) such other
information regarding each nominee as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the Board of Directors nominated such nominee.
Nothing in this Section shall preclude the Board of Directors or the Nominating
Committee either from making nominations for the election of directors or from
excluding the person nominated by a stockholder from the slate of directors
presented to the meeting.
SECTION 11. Election of Directors. Directors shall be elected by a plurality of
the votes of the shares present in person or represented by proxy at a meeting
of stockholders and entitled to voted on the election of directors.
ARTICLE III
Directors
SECTION 1. General Powers. The business and affairs of the corporation shall be
managed by its Board of Directors.
SECTION 2. Number, Tenure and Qualifications. The number of Directors of the
corporation is established at ten. Each Director shall hold office for the term
for which such Director is elected or until a successor shall have been chosen
and shall have qualified or until such Director's earlier death, resignation,
retirement, disqualification or removal.
SECTION 3. Regular Meeting. A regular meeting of the Board of Directors shall be
held without other notice than this by-law, immediately after, and at the same
place as, the annual meeting of stockholders. The Board of Directors may
provide, by resolution, the time and place, either within or without Delaware,
for the holding of additional regular meetings without other notice than such
resolution.
SECTION 4. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the chairman or any two directors. The person or
persons authorized to call special meetings of the Board of Directors may fix
any place, either within or without Delaware, as the place for holding any
special meeting of the Board of Directors called by them.
SECTION 5. Notice. Notice of any special meeting shall be given at least two
days previously thereto by written notice delivered personally, by mail or
telegram, to each Director at his business address or at such other address as
he shall have previously requested in writing. If mailed, such notice shall be
deemed to be delivered two days after being deposited in the United States mails
in a sealed envelope so addressed, with postage thereon prepaid. If notice is
given by telegram, such notice shall be deemed to be delivered when the telegram
is delivered to the telegraph company. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the Board of Directors
need be specified in the notice or waiver of notice of such meeting, unless
otherwise required by law.
SECTION 6. Quorum. A majority of the Board of Directors shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors,
provided that if less than a majority of the Directors are present at said
meeting, a majority of the Directors present may adjourn the meeting from time
to time without further notice. The act of the majority of the Directors present
at a meeting at which a quorum is present shall be the act of the Board of
Directors unless a greater number is required by the Certificate of
Incorporation or these by-laws.
SECTION 7. Interested Directors. Except as may otherwise be provided in the
Certificate of Incorporation, no contract or transaction between the corporation
and one or more of its Directors or officers, or between the corporation and any
other corporation, partnership, association, or other organization in which one
or more of its Directors or officers are Directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely
because the Director or officer is present at or participates in the meeting of
the Board or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose, if:
(a) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested Directors, even though the disinterested
Directors be less than a quorum; or
(b) The material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by the vote of the stockholders; or
(c) The contract or transaction is fair as to the corporation as of the time it
is authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholders.
Common or interested Directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
SECTION 8. Vacancies. If vacancies occur in the Board of Directors caused by
death, resignation, retirement, disqualification or removal from office of any
Director or Directors or otherwise, or if any new Directorship is created by any
increase in the authorized number of Directors, a majority of the Directors then
in office, though less than a quorum, may choose a successor or successors, or
fill the newly created Directorship and the Directors so chosen shall hold
office until the next annual election of Directors and until their successors
shall be duly elected and qualified, unless sooner displaced.
SECTION 9. Committees. 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.
(a) 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 thereof 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, 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 of merger or consolidation, recommending to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommending to the stockholders a
dissolution of the corporation or a revocation of a dissolution, or
amending 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 time by resolution adopted by the
Board of Directors. Each committee shall keep regular minutes of its
meetings and report the same to the Board of Directors when required.
(b) Executive Committee. The Board of Directors, by resolution adopted
by a majority of the whole Board, may designate two or more Directors to
constitute an Executive Committee and one or more Directors as alternates
thereof. Subject to the limitations provided in these by-laws and such
further limitation as might be required by law or by the Certificate of
Incorporation or by further resolution of the Board of Directors, the
Executive Committee may, during intervals between meetings of the Board of
Directors, exercise the powers of the Board of Directors in the management
of the business and affairs of the corporation (including the corporation's
dealings with its foreign subsidiaries, affiliates, and licensees) and may
authorize the seal of the corporation to be affixed to all papers which may
require it. The Committee shall not be empowered to take action with
respect to: issuing bonds, debentures; increasing or reducing the capital
of the corporation; authorizing commitments and expenditures in excess of
the total amount or amounts provided in the capital budgets approved or
otherwise authorized by the Board of Directors; borrowing of monies, except
within limits expressly approved by the Board of Directors; electing
officers; fixing the compensation of officers; establishment of stock
option plans, profit sharing or similar types of compensation plans,
filling vacancies or newly-created directorships on the Board of Directors;
removing officers or directors of the corporation; dissolution, or any
other action specifically reserved to the Board of Directors including all
matters requiring the approval of stockholders. The Committee may also from
time to time formulate and recommend to the Board for approval general
policies regarding management of the business and affairs of the
corporation. The designation of the Committee and the delegation thereto of
authority shall not operate to relieve the Board of Directors or any member
thereof of any responsibility imposed upon it or him by operation of law.
The secretary of the corporation (or in his absence a person designated by
the Executive Committee) shall act as secretary at all meetings of the
Executive Committee. A majority of the Committee, from time to time, shall
constitute a quorum for the transaction of business and the act of a
majority of the Directors present at a meeting in which a quorum is present
shall be the act of the Committee, provided that in the absence or
disqualification of any member of the Committee, the member or members
thereof 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. Regular meetings of the Committee may be
held without notice at such times and at such places as shall be fixed by
resolution adopted by a majority of the Committee. Special meetings may be
called by any member of the Committee on twenty-four hours' prior written
or telegraphic notice.
(c) Compensation Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate not less than two
Directors to constitute a Compensation Committee and one or more directors
as alternate members thereof, none of whom shall be employees of the
corporation. In the absence or disqualification of any member of the
Committee, the member or members thereof 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,
provided that the majority of the Committee, as then constituted, shall not
be employees of the corporation. The Compensation Committee shall review
and determine from time to time the salaries and other compensation of all
elected officers of the corporation and shall submit to the Board of
Directors such reports in such form and at such time as the Board of
Directors may request.
(d) Audit Committee. The Board of Directors, by resolution adopted by a
majority of the whole Board, may designate three or more Directors who are
not employees of the corporation to constitute an Audit Committee and one
or more Directors who are not employees of the corporation as alternate
members thereof. The Board of Directors shall adopt a charter setting forth
the duties of the Audit Committee. Among other things, the Committee shall
review the selection and qualifications of the independent public
accountants employed from time to time to audit the financial statements of
the corporation and the scope and adequacy of their audits. The Committee
shall also consider recommendations made by such independent public
accountants. The Committee may also make such review of the internal
financial audits of the corporation as it considers desirable and shall
report to the Board any additions or changes which it deems advisable. In
the absence or disqualification of any member of the Committee, the member
or members thereof 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 who is not an employee of the
corporation to act at the meeting in the place of any such absent or
disqualified member.
(e) Employee Benefits Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate three (3) or more
individuals, any or all of whom may be non-director employees of the
Company, to constitute an Employee Benefits Committee. The Committee shall
select, retain or remove the investment managers, advisors, consultants and
persons otherwise employed by the Company as named fiduciaries under the
Company's employee benefit plans, which actions it shall report to the
Board of Directors. The Committee shall review the performance of the
trustee or trustees, investment managers, advisors and consultants under
said plans with respect to the investment of plan assets. The Committee
shall be responsible for the administration of the Company's employee
benefit plans and, in fulfilling that responsibility, may delegate to
others, whether Company employees or otherwise, specific assignments in
administering the plans.
(f) Corporate Governance and Nominating Committee. The Board of
Directors, by resolution adopted by a majority vote of the whole Board, may
designate two or more Directors to constitute a Corporate Governance and
Nominating Committee. This Committee shall recommend criteria for Board
membership, establish procedures for the receipt and evaluation of
suggestions of candidates, and make recommendations to the Board concerning
nominees for Board membership. The Committee may recommend to the Board
policies and procedures relating to corporate governance and monitor such
policies and procedures when established. The Committee may also make
recommendations to the Board concerning the number of Directors to serve on
the Board and may establish standards for evaluation of the performance of
the Directors in order to make recommendations with regard thereto.
(g) Finance Committee. The Board of Directors, by resolution adopted by
a majority of the whole Board, may designate two or more directors to
constitute a Finance Committee and one or more directors as alternate
members thereof. The duties and responsibilities of the Finance Committee
shall be to review, upon the request of the Chairman or the President,
management's proposals with respect to: the corporation's debt and equity
financing; recommendations to the Board with respect to dividend policy and
payments; acquisitions and divestitures exceeding the standing authority
management has by virtue of the resolution dated December 10, 1993, or its
successors; recommendations to the Board concerning the corporation's
investment portfolio; the corporation's real estate investments; and other
financing and investment matters.
SECTION 10. Consent in Lieu of Meeting. 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 any committee thereof
may be taken without a meeting if all members of the Board or committee thereof,
as the case may be, consent thereto in writing, and the writing or writings are
filed with the minutes of the proceedings of the Board or committee.
SECTION 11. Compensation. Directors who are also full time employees of the
corporation shall not receive any compensation for their services as Directors
but they may be reimbursed for reasonable expenses of attendance. By resolution
of the Board of Directors, all other Directors may receive, as compensation for
their services any combination of: an annual fee; a fee for each meeting
attended; shares of stock; or other forms of compensation; together with
reimbursement of expenses of attendance, if any, at each regular or special
meeting of the Board of Directors or any committee of the Board of Directors;
provided, that nothing herein contained shall be construed to preclude any
Director from serving the corporation in any other capacity and receiving
compensation therefore.
SECTION 12. Meeting by Conference Telephone. Unless otherwise restricted by the
Certificate of Incorporation, members of the Board of Directors or any committee
designated by such Board may participate in a meeting of such Board or committee
by means of conference telephone or similar communication equipment by means of
which all persons participating in the meeting can hear each other, and
participation in a meeting pursuant hereto shall constitute presence in person
at such meeting. Unless otherwise required by law, no notice shall be required
if a quorum of the Board or any committee is participating.
ARTICLE IV
Officers
SECTION 1. Number. The officers of the corporation shall be a chairman, vice
chairman, chairman of the Executive Committee, one or several executive vice
presidents or vice presidents (the number thereof to be determined by the Board
of Directors), one or several of the vice presidents may be designated "senior
vice president" by the Board of Directors, and one of whom may be elected as
chief financial officer of the corporation, a treasurer, a controller, a
secretary, and other such officers as may be elected in accordance with the
provisions of this article. Any two or more offices may be held by the same
person.
SECTION 2. Election and Term of Office. The officers of the corporation shall be
elected annually by the Board of Directors at the first meeting of the Board of
Directors held after each annual meeting of stockholders. If the election of
officers shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Vacancies may be filled or new offices
created and filled at any meeting of the Board of Directors. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign or shall have been removed
in the manner hereinafter provided.
SECTION 3. Removal. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its judgment the
best interests of the corporation would be served thereby, but such removal
shall be without prejudice to the contract rights, if any, of the person so
removed.
SECTION 4. Vacancies. A vacancy in any office because of death, resignation,
removal, disqualification or otherwise, may be filled by the Board of Directors
for the unexpired portion of the term.
SECTION 5. Chairman. The chairman shall be the chief executive officer of the
corporation and shall have general supervision over all of the affairs of the
corporation and shall determine and administer the policies of the corporation
as established by the Board of Directors or by the Executive Committee. The
chairman shall: (i) provide leadership to the Board in reviewing and advising
upon matters which exert major influence on the manner in which the
corporation's business is conducted; (ii) preside at all meetings of the
stockholders and of the Board of Directors; (iii) in the absence of the chairman
of the Executive Committee, preside at all meetings of the Executive Committee;
and (iv) perform such other duties as may be conferred by law or assigned by the
Board of Directors. The chairman may sign, with the secretary or other proper
officer of the corporation thereunto authorized by the Board of Directors, stock
certificates of the corporation, any deeds, mortgages, bonds, contracts, or
other instruments, except in cases where the signing or execution thereof shall
be expressly delegated by the Board of Directors or by these by-laws to some
other officer or agent of the corporation, or shall be required by law to be
otherwise signed or executed. The chairman may also execute proxies on behalf of
the corporation with respect to the voting of any shares of stock owned by the
corporation; have the power to appoint agents or employees as in the chairman's
judgment may be necessary or appropriate for the transaction of the business of
the corporation; and in general shall perform all duties incident to the office
of chairman.
SECTION 6. Vice Chairman. The vice chairman shall assist the chairman in
supervising the affairs of the corporation, with special responsibility for
integrating acquired businesses into the corporation. In the absence of the
chairman, the vice chairman shall preside at all meetings of the stockholders
and the Board of Directors. In the event of the absence or disability of the
chairman, the vice chairman shall assume all of the duties and responsibilities
of that office. The vice chairman may sign any deeds, mortgages, bonds,
contracts or other instruments, except in cases where the signing is required to
be by some other officer or agent of the corporation. The vice chairman shall
perform such other duties as may be designated by the chairman or the Board of
Directors.
SECTION 7. Chairman of the Executive Committee. The chairman of the Executive
Committee shall preside at all meetings of the Executive Committee; in the
absence of the chairman and vice chairman, he shall preside at all meetings of
the stockholders and the Board of Directors; he shall act in an advisory
capacity to the chairman in all matters concerning the interest and management
of the corporation, and he shall perform such other duties as may be assigned to
him by the Board of Directors, the Executive Committee or the chairman. In the
event of the absence or disability of the chairman and vice chairman, he shall
assume all the duties and responsibilities of the office of the chairman. The
chairman of the Executive Committee may sign, with the secretary or other proper
officer of the corporation thereunto authorized by the Board of Directors, stock
certificates of the corporation, any deeds, mortgages, bonds, contracts, or
other instruments delegated by the Board of Directors or by these by-laws to
some other officer or agent of the corporation, or shall be required by law to
be otherwise signed or executed. The chairman of the Executive Committee may
also execute proxies on behalf of the corporation with respect to the voting of
any shares of stock owned by the corporation.
SECTION 8. Executive Vice President(s). The executive vice president or
executive vice presidents (if elected by the Board of Directors) shall perform
such duties not inconsistent with these by-laws as may be assigned to him or
them by the chairman or the Board of Directors. In the event of absence or
disability of the chairman, and vice chairman and chairman of the Executive
Committee, the executive vice president (or in the event there be more than one,
the executive vice president determined in the order of election) shall assume
all the duties and responsibilities of the office of the chairman.
SECTION 9. Chief Financial Officer. The chief financial officer (if elected by
the Board of Directors) shall have general supervision over the financial
affairs of the corporation.
SECTION 10. The Vice President(s). The Board of Directors may designate any vice
president as a senior vice president. In the event of absence or disability of
the chairman and vice chairman, the chairman of the Executive Committee and all
executive vice presidents, the senior vice presidents) or the vice president(s)
in the order of election, shall assume all the duties and responsibilities of
the office of the chairman. Any senior vice president or any vice president may
sign, with the secretary or an assistant secretary, stock certificates of the
corporation; and shall perform such other duties as from time to time may be
assigned to him by the chairman or by the Board of Directors. In general, the
vice president (or vice presidents, including the senior vice president or
senior vice presidents) shall perform such duties not inconsistent with these
by-laws as may be assigned to him (or them) by the chairman, the executive vice
presidents or by the Board of Directors.
SECTION 11. The Treasurer. If required by the Board of Directors, the treasurer
shall give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the Board of Directors shall determine. He shall: (a)
have charge and custody of and be responsible for all funds and securities of
the corporation; receive and give receipts for monies due and payable to the
corporation from any source whatsoever, and deposit all such monies in the name
of the corporation in such banks, trust companies or other depositories as shall
be selected in accordance with the provisions of Article VI of these by-laws;
(b) in general perform all duties incident to the office of treasurer and such
other duties not inconsistent with these by-laws as from time to time may be
assigned to him by the Board of Directors, or by the chairman, or any vice
president designated for such purpose by the chairman.
SECTION 12. The Secretary. The secretary shall: (a) keep the minutes of the
stockholders' and the Board of Directors' meetings in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with the
provisions of these by-laws or as required by law; (c) be custodian of the
corporate records and of the seal of the corporation and see that the seal of
the corporation is affixed to all stock certificates prior to the issue thereof
and to all documents, the execution of which on behalf of the corporation under
its seal is required; (d) keep a register of the post office address of each
stockholder which shall be furnished to the secretary by such stockholder; (e)
sign with a vice president, or the chairman, stock certificates of the
corporation, the issue of which shall have been authorized by resolution of the
Board of Directors; (f) have general charge of the stock transfer books of the
corporation; (g) act as secretary at all meetings of the Executive Committee;
and (h) in general perform all duties incident to the office of secretary and
such other duties not inconsistent with these by-laws as from time to time may
be assigned to him by the chairman or by the Board of Directors.
SECTION 13. The Controller. The controller shall provide guidance and evaluation
with respect to the corporation's accounting and related functions, control and
procedures systems, budget programs, and coordinate same on a divisional and
overall corporate level. The controller shall report to such officer or officers
of the corporation and perform such other duties incident to the office of
controller as may be prescribed from time to time by the chairman, chief
financial officer, or by the Board of Directors.
SECTION 14. Assistant Treasurers and Assistant Secretaries. The chairman may
appoint one or more assistant treasurers and one or more assistant secretaries
who shall serve as such until removed by the chairman or the Board of Directors.
The assistant treasurers may be required to give bonds for the faithful
discharge of their duties in such sums and with such sureties as the chairman
shall determine. The assistant treasurers and assistant secretaries, in general,
shall perform such duties as shall be assigned to them by the treasurer or the
secretary, respectively, or by the chairman, but shall not be considered to be
officers of the corporation solely by reason of such appointments or titles.
SECTION 15. Appointive Presidents and Vice Presidents. The chairman may from
time to time designate employees of the corporation who are managing one or
several groups, divisions, or other operations of the corporation as
"President", "Vice President", or similar title, which employees shall not be
considered to be officers of the corporation solely by reason of such
appointments or titles. The chairman shall report such appointments to the
Compensation Committee at least annually.
SECTION 16. Salaries. The salaries of the officers shall be fixed from time to
time by the Board of Directors on a monthly basis and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
Director of the corporation.
ARTICLE V
Indemnification of Officers, Directors
Employees and Agents
SECTION 1. Non-Derivative Actions and Criminal Prosecutions. To the extent
permitted by applicable law from time to time in effect, 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 (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
Director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed 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. Derivative Actions. 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 or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a Director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a Director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine upon application that
despite the adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
SECTION 3. Right to Indemnification. To the extent that a Director, officer,
employee or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in Sections 1
and 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified by the corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith.
SECTION 4. Where No Adjudication. Any indemnification under Sections 1 and 2 of
this Article (unless ordered by a court) shall be made by the corporation only
as authorized in the specific case upon a determination that indemnification of
the Director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in said Sections 1 and
2. Such determination shall be made (i) by the Board of Directors by a majority
vote of a quorum consisting of Directors who were not parties to such action,
suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable and a quorum of disinterested Directors so directs, by independent
legal counsel (compensated by the corporation) in a written opinion, or (iii) by
the stockholders.
SECTION 5. Expenses. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by or on behalf of
the Director, officer, employee or agent to repay such amount unless it shall
ultimately be determined that he is entitled to be indemnified by the
corporation as authorized in this Article.
SECTION 6. Non-exclusive. The indemnification provided by this Article shall not
be deemed exclusive of any other rights to which those seeking indemnification
may be entitled under any by-law, agreement, vote of stockholders or
disinterested Directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and shall
continue as to a person who has ceased to be a Director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
SECTION 7. Insurance. The corporation may purchase and maintain insurance on
behalf of any person who is or was a Director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
Director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against 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 provisions of this Article or of applicable law.
ARTICLE VI
Contracts, Loans, Checks and Deposits
SECTION 1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of any on behalf of the corporation, and such authority
may be general or confined to specific instances.
SECTION 2. Loans. No loans shall be contracted on behalf of the corporation and
no evidence of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or confined
to specific instances.
SECTION 3. Checks, Drafts, etc. All checks, drafts or other orders for the
payment of money, notes or other evidences of indebtedness issued in the name of
the corporation, shall be signed by such officer or officers, agent or agents of
the corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors.
SECTION 4. Deposits. All funds of the corporation not otherwise employed shall
be deposited from time to time to the credit of the corporation in such banks,
trust companies or other depositaries as the Board of Directors may select.
ARTICLE VII
Stock Certificates
SECTION 1. Stock Certificates. Certificates representing shares of stock of the
corporation shall be in such form as may be determined by the Board of
Directors, shall be numbered and shall be entered in the books of the
corporation as they are issued. They shall exhibit the holder's name and number
of shares and shall be signed by the chairman, the chairman of the Executive
Committee, or a vice president and the treasurer or an assistant treasurer or
the secretary or an assistant secretary, and shall be sealed with the seal of
the corporation. If a stock certificate is countersigned (a) by a transfer agent
other than the corporation or its employee, or (b) by a registrar other than the
corporation or its employee, any other signature on the certificate may be a
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.
SECTION 2. Lost Certificates. The Board of Directors may from time to time make
such provision as it deems appropriate for the replacement of lost, stolen or
destroyed stock certificates, including the requirement to furnish an affidavit
and an indemnity.
SECTION 3. Transfers of Stock. Upon surrender to the corporation or the transfer
agent of the corporation of a stock certificate duly endorsed or accompanied by
proper evidence of succession, assignment of 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 the books of
the corporation. The person in whose name shares of stock stand on the books of
the corporation shall be deemed the owner thereof for all purposes as regards
the corporation.
SECTION 4. Transfer Agents and Registrars. The Board of Directors may appoint
one or more transfer agents and registrars and may thereafter require all stock
certificates to bear the signature of a transfer agent and registrar.
SECTION 5. Rules of Transfer. The Board of Directors shall have the power and
authority to make all such rules and regulations as they may deem expedient
concerning the issue, transfer and registration of stock certificates of the
corporation.
ARTICLE VIII
Fiscal Year
The fiscal year of the corporation shall begin on the first day of January in
each year and end on the thirty-first of December in each year.
ARTICLE IX
Dividends
The Board of Directors may from time to time, declare, and the corporation may
pay, dividends on its outstanding shares of stock in the manner and upon the
terms and conditions provided by law and its Certificate of Incorporation.
ARTICLE X
Seal
The Board of Directors shall provide a corporate seal which shall be in the form
of a circle and shall have inscribed thereon the name of the corporation and the
words "Corporate Seal, Delaware".
ARTICLE XI
Waiver of Notice
Whenever any notice whatever is required to be given under the provisions of
these by-laws or under the provisions of the Certificate of Incorporation or
under the provisions of The General Corporation Law of Delaware, waiver thereof
in writing, signed by the person or persons entitled to such notice, whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Attendance of any person at a meeting for which any
notice whatever is required to be given under the provisions of these by-laws,
the Certificate of Incorporation or The General Corporation Law of Delaware
shall constitute a waiver of notice of such meeting, except when the person
attends for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
