Exhibit 3(a)
BY-LAWS OF
FURNITURE BRANDS INTERNATIONAL, INC.
(Revised and Amended to May 6, 1998)
-oOo-
ARTICLE I
Offices
Section 1. The principal office of Furniture Brands
International, Inc. (the "Corporation") shall be in the State of
Delaware at such location and with such registered agent in charge
thereof as may be established by the Board of Directors from time to
time.
Section 2. The Corporation may also have an office in the
County of Saint Louis, State of Missouri, and also offices at such
other places as the Board of Directors may from time to time appoint,
or the business of the Corporation may require.
ARTICLE II
Seal
Section 1. The corporate seal shall have inscribed thereon
the name of the Corporation, the state and the year of its
incorporation and the words "CORPORATE SEAL".
ARTICLE III
Stockholders' Meetings
Section 1. Meetings of the stockholders shall be held in the
County of Saint Louis, Missouri, or at such other place within or
without the State of Missouri as the Board of Directors may designate.
Annual Meetings
Section 2. Unless otherwise provided by resolution of the
Board of Directors, an annual meeting of stockholders shall be held on
the first Wednesday of May in each year, if not a legal holiday, and
if a legal holiday, then on the next business day following, at 10
a.m. At each such annual meeting, the stockholders shall elect, by
ballot, directors to succeed those directors whose terms expire at
such meeting, and shall transact such other business as may properly
be brought before the meeting. The number of directors to be elected
at each annual meeting of stockholders shall be determined by the
Board of Directors of the Corporation at least thirty days before such
annual meeting.
Quorum
Section 3. A majority of the issued and outstanding Common
Stock, present in person or represented by proxy, shall be requisite
and shall constitute a quorum at all meetings of the stockholders for
the transaction of business except as otherwise provided by statute,
by the Restated Certificate of Incorporation, or by these By-Laws.
If, however, such majority shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote
thereat, present in person or by proxy, shall have power to adjourn
the meeting from time to time without notice other than announcement
at the meeting, until the record holders of the requisite amount of
stock shall be present or represented. At such adjourned meeting at
which the requisite amount of stock shall be represented, any business
may be transacted which might have been transacted at the meeting as
originally notified.
How And Who May Vote
Section 4. At each meeting of the stockholders, every holder
of Common Stock having the right to vote shall be entitled to vote in
person, or by proxy appointed by an instrument in writing subscribed
by such stockholder and bearing a date not more than three years prior
to said meeting, unless said instrument provides for a longer period.
In all matters each holder of Common Stock shall have one vote for
each share of Common Stock registered in his name on the books of the
Corporation at the close of business on the record date. However, if
a record date is not fixed as herein provided, then no share of stock
shall be voted at such meeting which has been transferred on the books
of the Corporation within twenty days next preceding such meeting.
The vote for directors, and, upon demand of any stockholder entitled
to vote, the vote upon any question before the meeting, shall be by
ballot. All elections shall be had, and (except as otherwise required
by statute or the Restated Certificate of Incorporation) all questions
decided, by a plurality vote.
Notice of Annual Meeting
Section 5. Written notice of the annual meeting, stating the
time and place where it will be held, shall be mailed at least ten
days prior to the meeting to each stockholder at such address as
appears on the stock ledger of the Corporation.
Stockholders List - Entitled to Vote
Section 6. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled
to vote at said 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 during ordinary business hours for a
period of at least ten days prior to the meeting, either at a place
within the city where the meeting is to be held and which place shall
be specified in the notice of the meeting, or, if not so specified, at
the place where said meeting is to be held, and the list shall be
produced and kept at the time and place of meeting during the whole
time thereof, and subject to inspection of any stockholder who may be
present.
Special Meetings
Section 7. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise provided by statute, may be
called only by the Board of Directors, pursuant to a resolution
approved by a majority of the entire Board of Directors, or by the
holders of not less than one-fifth of the combined voting power of the
outstanding shares of the Corporation entitled to vote generally in
the election of directors (by written notice delivered to the
Secretary of the Corporation), upon not less than ten and not more
than sixty days' written notice.
Business at Special Meetings
Section 8. Business transacted at all special meetings shall
be confined to the objects stated in the call.
Notice of Special Meetings
Section 9. Written notice of a special meeting of
stockholders, stating the time and place and object thereof, shall be
mailed, postage prepaid, at least ten days before such meeting, to
each stockholder entitled to vote thereat at such address as appears
on the books of the Corporation.
ARTICLE IV
Board of Directors
Number - Election of - Term of Office
Section 1. The business and affairs of the Corporation shall
be managed under the direction of the Board of Directors. From time
to time, the number of directors constituting the Board of Directors
shall be determined by resolution of the Board of Directors, and the
number of directors may be increased by the affirmative vote of a
majority of the directors then in office, although less than a quorum;
provided, however, that the number of directors shall not be less than
seven nor more than fifteen.
As of August 3, 1992, as provided in Article SEVENTH of the
Restated Certificate of Incorporation, and subject to the provisions
thereof, the Board of Directors was classified by dividing the
directors into three classes as nearly equal in size as possible,
serving for terms ending at the annual meetings of stockholders in
1993, 1994 and 1995, respectively. As of May 5, 1993, Article SEVENTH
of the Restated Certificate of Incorporation was amended so that on
and after May 5, 1993, the class of directors elected at each annual
meeting of stockholders shall be elected by ballot by the stockholders
entitled to vote, and (subject to the provisions of Paragraphs (a)(2)
and (b) of Article SEVENTH of the Restated Certificate of
Incorporation) for terms of one year and until their successors are
elected and qualified, or until their earlier resignation or removal.
Pursuant to Paragraph (b) of Article SEVENTH of the Restated
Certificate of Incorporation, the terms of all directors in office at
the first annual meeting of stockholders held on or after May 1, 1995,
shall terminate at such meeting, and from and after such date all
directors shall be elected for terms of one year and until their
successors are elected and qualified, or until their earlier
resignation or removal.
Place of Meetings - Offices
Section 2. The directors may hold their meetings and have one
or more offices outside of Delaware, at the offices of the Corporation
in the County of Saint Louis, Missouri, or at such other places as
they may from time to time determine. The directors may participate
in meetings of the Board and committees of the Board by conference
telephone and participation in this manner shall constitute presence
in person at such meeting.
Powers
Section 3. In addition to the powers and authorities by these
By-Laws expressly conferred upon them, the Board may exercise all such
powers of the Corporation and do all such lawful acts and things as
are not by statute or by the Certificate of Incorporation or by these
By-Laws directed or required to be exercised or done by the
stockholders.
Meeting and Organization
Section 4. The newly elected Board may meet on the day of the
annual stockholders' meeting after such meeting shall have adjourned,
or at such place and time as shall be fixed by the vote of the
stockholders at the annual meeting, for the purpose of organization or
otherwise, and no notice of such meeting shall be necessary to the
newly elected directors in order legally to constitute the meeting;
provided, a majority of the whole Board shall be present; or they may
meet at such place and time as shall be fixed by the consent in
writing of all the directors.
Regular Meetings
Section 5. Regular meetings of the Board may be held without
notice at such time and place as shall from time to time be determined
by the Board.
Special Meetings
Section 6. Special meetings of the Board may be called by the
Chairman of the Board, or the Vice-Chairman of the Board or the
President on one day's notice to each director, either personally or
by mail or by telegram; special meetings shall be called by the
Chairman of the Board or the Vice-Chairman of the Board or the
President or the Secretary in like manner and on like notice on the
written request of one-third of the directors in office at the time.
Quorum
Section 7. At all meetings of the Board a majority of the
directors shall be necessary and sufficient to constitute a quorum for
the transaction of business, and the act of a majority of the
directors present at any meeting at which there is a quorum, shall be
the act of the Board of Directors except as may be otherwise
specifically provided by statute or by the Restated Certificate of
Incorporation or by these By-Laws.
Committees
Section 8. There may be an Executive Committee of the Board
of Directors consisting of the Chairman of the Board and the
President, and two or more additional directors designated by
resolution adopted by a majority of the whole Board. Said Committee
may meet at stated times, or on any notice to all by the Chairman of
the Committee or by any two members of the Committee. A majority of
the members of the Executive Committee shall be necessary and
sufficient to constitute a quorum for the transaction of business by
said Committee. During the intervals between meetings of the Board
such Committee shall advise with and aid the officers of the
Corporation in all matters concerning its interests and the management
of its business, and generally perform such duties and exercise such
powers as may be directed or delegated by the Board of Directors from
time to time. The Board may delegate to such Committee the authority
to exercise all of the powers of the Board while the Board is not in
session except the powers and authority specifically reserved unto the
Board by the General Corporation Law of the State of Delaware as from
time to time amended, and except as otherwise provided in these By-
Laws. Vacancies in the membership of such Committee shall be filled
by the Board of Directors at a regular meeting or at a special meeting
called for that purpose.
Section 9. The Board of Directors may, by resolution passed
by a majority of the whole Board, designate one or more other
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 such committee, who may replace any absent or
disqualified member at any meeting of such 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 to act at the meeting in place of any such
absent or disqualified member. Any such committee, to the extent
provided in the resolution of the Board, shall have and may exercise
all the powers and authority of the Board 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 (including the Executive Committee) shall have power
or authority in reference to amending the Restated 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 dissolution, removing, replacing or indemnifying
directors or amending these By-Laws; and, unless the resolution
expressly so provided, no such committee (including the Executive
Committee) shall have the power or authority to declare a dividend or
to authorize the issuance of stock.
Section 10. Unless the Board of Directors or these By-Laws
otherwise provides, each committee designated by the Board may make,
alter and repeal rules for the conduct of its business. In the
absence of a provision by the Board or a provision in these By-Laws or
the rules of such committee to the contrary, a majority of the entire
authorized number of members of such committee shall constitute a
quorum for the transaction of business, the vote of a majority of the
members present at a meeting at the time of such vote if a quorum is
then present shall be the act of such committee, and in other respects
each committee shall conduct its business in the same manner as the
Board conducts its business pursuant to Article IV of these By-Laws.
Section 11. Until the first annual meeting of stockholders of
the Corporation held on or after May 1, 1995, at least one of the
Class A Directors (as defined in the Amended and Restated Certificate
of Incorporation of the Corporation, as in effect on the Effective
Date) shall be appointed a member of each committee of the Board of
Directors or shall be entitled to be present at, and receive
reasonable advance notice of, each meeting of such Committee and to
receive promptly a copy of each action by written consent taken by
such Committee.
Section 12. There shall be a Litigation Committee of the
Board of Directors consisting of two Class A Directors and two other
directors. The two Class A Directors shall be designated by a
resolution adopted by the Class A Directors, and the two other
directors shall be designated by a resolution adopted by a majority of
the directors other than the Class A Directors. The Board of
Directors shall irrevocably empower and direct and delegate to such
Litigation Committee its entire authority (and it shall be the
responsibility of the Litigation Committee) to manage, oversee and, in
general, make, or direct the making of, all decisions (including,
without limitation, decisions as to funding, strategy, prosecution,
discovery, trial, settlement and/or dismissal) on behalf of the
Corporation with respect to all Third Party Litigation, as defined in
the Debtor's Amended Joint Plan of Reorganization (the "Plan"), for
the benefit of the beneficiaries of the proceeds of such litigation,
as set forth in the Plan. The Litigation Committee shall also be
responsible for determining whether any Third Party Litigation (other
than the claims pending as of the Effective Date) shall be litigated
and, if litigated, such Committee shall be irrevocably empowered and
directed by the Board and the Board shall delegate to the Litigation
Committee its entire authority (and it shall be the responsibility of
the Litigation Committee) to manage, oversee and make, or direct the
making of, all decisions (including, without limitation, decisions as
to funding, strategy, prosecution, discovery, trial, settlement and/or
dismissal) on behalf of the Corporation with respect to such
litigations for the benefit of the beneficiaries of the proceeds
thereof, as set forth in the Plan. Three members of the Litigation
Committee shall be necessary and sufficient to constitute a quorum for
the transaction of business by said Committee and the affirmative vote
of three members shall be required for each matter considered. If the
Litigation Committee is unable to agree on any matter by the required
vote, such matter shall be resolved by the United States Bankruptcy
Court for the Eastern District of Missouri, which, pursuant to the
Plan, shall retain jurisdiction over the management of the Third Party
Litigation for this purpose. Vacancies in the membership of the
Litigation Committee shall be filled in the same manner as the initial
formation of such Committee; provided, however, that after the first
annual meeting of stockholders held on or after May 1, 1995,
Litigation Committee members may consist of Disinterested Directors
(as defined in the Restated Certificate of Incorporation of the
Corporation, as in effect on the Effective Date) in lieu of Class A
Directors.
Section 13. All committees of the Board of Directors shall
keep regular minutes of their proceedings and report same to the Board
at the next Board meeting.
ARTICLE V
General Officers
Section 1. The officers of this Corporation shall be as
follows:
Chairman of the Board
One or more Vice-Chairmen of the Board as the Board
of Directors shall deem advisable
President
One or more Vice-Presidents as the Board of Directors
shall deem advisable
Secretary
One or more Assistant Secretaries as the Board of
Directors shall deem advisable
Treasurer
One or more Assistant Treasurers as the Board of
Directors shall deem advisable.
Controller
One or more Assistant Controllers as the Board of
Directors shall deem advisable
Qualifications of Other Officers
Section 2. Any of the offices named in Section 1 of this
Article V may, in the discretion of the Board of Directors, be held by
one and the same person.
The Board of Directors may, from time to time, elect such other
officers, representatives or agents as it may deem necessary and
prescribe their qualifications and duties.
Agents
Section 3. The Chief Executive Officer may appoint, from time
to time, such other agents, representatives or assistants in the
business of the Corporation as he may deem necessary or as the
business of the Corporation may warrant. Such appointments, either
before or after being made, shall be submitted to the Board of
Directors for its approval or rejection.
Chairman of the Board
Section 4. The Chairman of the Board of Directors shall, when
present, preside at all meetings of the stockholders and of the Board
of Directors, and shall have such other power and perform such other
duties as may be prescribed by the Board of Directors or its Executive
Committee.
When both a Chairman of the Board and President have been
elected, the Board of Directors shall appoint one of them Chief
Executive Officer of the Corporation. If only one of such offices
shall have been filled, or if one person holds both such offices, he
shall be the Chief Executive Officer.
Absence of Chairman
Section 5. In the event of the death, absence or disability
to act of the Chairman of the Board, the Vice-Chairman of the Board
(or, if more than one, such Vice-Chairman as the Board shall specify)
shall, when present, preside at meetings of the stockholders and of
the Board of Directors; and the Vice-Chairman of the Board shall
perform such other duties as may be prescribed by the Board of
Directors.
In the event of the death, absence or disability to act of the
Chairman of the Board and of the Vice-Chairman of the Board, the
President, when present, shall preside at meetings of the stockholders
and of the Board of Directors.
President
Section 6. The President shall have such powers and perform
such duties as the Board of Directors or its Executive Committee may
assign to him.
Vice-President
Section 7. In the event of the death, absence or disability
to act of the President, any Vice-President, upon the request of the
Chairman of the Board, shall exercise all the powers and perform all
the duties of the President. The Board of Directors may specially
designate one or more Vice-Presidents with a descriptive title, such
as Senior Executive Vice-President, Executive Vice-President,
Administrative Vice-President and the like. The Vice-Presidents shall
perform such other duties and exercise such other powers as the Chief
Executive Officer may request or the Board of Directors may, by
resolution duly adopted, provide.
The Board of Directors shall designate one of the Vice-Presidents
as the chief financial officer of the Corporation and he shall be
responsible for the preparation of the Corporation's balance sheet,
income account and other corporate financial statements and reports,
and shall perform such other duties as may be prescribed by the Board
of Directors.
Secretary
Section 8. The Secretary shall have custody of the corporate
seal of the Corporation, and shall affix and attest the same to all
instruments requiring this seal; he shall keep the minutes of all
meetings of the stockholders and of the Board of Directors and of the
Executive Committee; he shall give all notices and make all
publications for regular and special meetings of the stockholders or
of the Board of Directors or of the Executive Committee; he shall
have charge and custody of the books containing the records of such
meetings, and shall perform such other duties s may be prescribed by
the Board of Directors.
Assistant Secretary
Section 9. The Assistant Secretary shall aid the Secretary,
under his direction, in the performance and execution of the duties of
the office and department, and in case of the temporary absence of the
Secretary, he shall, at the direction of the Chief Executive Officer,
perform the Secretary's duties and act in his stead, and perform such
other duties as may be prescribed by the Board of Directors.
Treasurer
Section 10. The Treasurer shall have the custody of all the
moneys, funds, credits and securities of the Corporation; he shall
cause to be kept full and complete records of all receipts and
disbursements of money, securities and other valuables. He shall make
such reports concerning same to the Board, to the Chairman of the
Board, and to the President, as from time to time may be requested;
he shall cause to be deposited to the credit of the Corporation, in
the corporate name, all funds of the Corporation, in such depositories
as he may select, subject at all times to the control of the Board of
Directors; and he shall perform such other duties as may be
prescribed by the Board of Directors.
Assistant Treasurer
Section 11. The Assistant Treasurer shall aid the Treasurer
and be under his direction in the performance and execution of the
duties of the office and department, and in the absence of the
Treasurer he shall perform his duties and act in his place, and shall
perform such other duties as may be prescribed by the Board of
Directors.
Controller
Section 12. The Controller shall aid the chief financial
officer of the Corporation and be under his direction in the
performance and execution of the duties of his office and department.
The Controller shall serve as the chief accounting officer of the
Corporation and he shall be responsible for internal auditing of the
books of account and cash records of the Corporation and its major
operating units, shall present to the annual meeting of stockholders a
statement in writing of the financial condition of the Corporation as
shown by the books, and shall perform such other duties as may be
prescribed by the Board of Directors. The Controller shall also
perform such other duties as may be prescribed by the Board of
Directors.
Assistant Controller
Section 13. The Assistant Controller shall aid the Controller
and be under his direction in the performance and execution of the
duties of the office and department, and shall perform such other
duties as may be prescribed by the Board of Directors.
Salaries
Section 14. The salaries of the officers shall be fixed by
the Board of Directors, and no salary shall be paid or collected by
any officer unless the same has been fixed during the term of office
of such officer, except as hereinafter provided under Article VIII,
Section 8.
Salaries of Employees
Section 15. The salaries of all employees shall be fixed by
the heads of departments or of the operating unit, subject to the
approval of the Chairman of the Board, the President, or the Executive
Committee.
ARTICLE V-A
Indemnification of Officers, Directors, and Employees
Section 1. (a) 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.
(b) 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 to the
Corporation unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly nd
reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a director, officer, employee or agent of
the Corporation or any person serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise has
been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in subsections (a) and (b), or in
defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) (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 subsections (a) and (b). Such determination
shall be made (1) 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 (2) if such a quorum is not obtainable, or even
if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (3) by the
stockholders. Any determination made by the Board of Directors under
this by-law shall be final and conclusive on all persons whomsoever.
(e) Expenses incurred defending a civil or criminal action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or
agent to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the Corporation.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
by-law, 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.
(g) The Corporation shall have power to 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 such person would be entitled to indemnification
against such liability under the provisions of this by-law.
(h) The indemnification and advancement of expenses provided by,
or granted pursuant to, this section shall, unless otherwise provided
when authorized or ratified, 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.
(This Article V-A ratified by stockholders on June 22, 1987.)
ARTICLE VI
Stock and Transfers, etc.
Section 1. The certificates of stock of the Corporation 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 of the Board, Vice-Chairman
of the Board, President, Senior Executive Vice-President, or a Vice-
President, and by the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary.
They shall also be countersigned by a financial institution
designated by the Board as Registrar, and by either a financial
institution designated by the Board or this Corporation acting through
a person or persons designated by the Board, as Transfer Agent of the
Corporation.
Any signature as required in this Section 1 may be by facsimile
signature, except the signature by the Registrar which shall be a
manual signature.
Fractional shares shall not be issued.
Transfers of Stock
Section 2. Transfers of stock shall be made on the books of
the Corporation only by the person named in the certificate or by his
attorney, lawfully constituted in writing, and upon surrender of the
certificate therefor.
Closing of Transfer Books or Fixing Record Date
Section 3. The Board of Directors may fix in advance a date,
not exceeding 60 days preceding the date of any meeting of
stockholders, or the date for the payment of any dividend, or the date
for the allotment of rights, or the date when any change or conversion
or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent, as a record date for the
determination of the stockholders entitled to notice of, and to vote
at, any such meeting and any adjournment thereof, or entitled to
receive payment of any such dividend, or to any such allotment of
rights, or to exercise the rights with respect of any such change,
conversion or exchange of capital stock, or to give such consent, and
in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such
notice of, and to vote at, such meeting and any adjournment thereof,
or to receive payment of such dividend, or to receive such allotment
of rights, or to exercise such rights, or to give such consent, as the
case may be, notwithstanding any transfer of any stock on the books of
the Corporation after any such record date fixed as aforesaid.
Registered Stockholders
Section 4. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock as the holder in fact
thereof and accordingly shall not be bound to recognize any equitable
or other claim to or interest in such share on the part of any other
person, whether or not it shall have express or other notice thereof,
except as expressly provided by the laws of Delaware.
Lost Certificates
Section 5. Any person claiming a certificate of stock to be
lost or destroyed shall make an affidavit or affirmation of that fact
and advertise the same in such manner as the Board of Directors may
require, and shall, if the Board of Directors so requires, give the
Corporation a bond of indemnity, in form and with one or more sureties
satisfactory to the Board, in at least double the value of the stock
represented by said certificate, whereupon a new certificate may be
issued of the same tenor and for the same number of shares as the one
alleged to be lost or destroyed.
ARTICLE VII
Dividends
Dividends upon the Common Stock of the Corporation may be
declared by the Board of Directors or (if the resolution creating the
Executive Committee so provided) by the Executive Committee at any
regular or special meeting out of any net profits or net assets of the
Corporation legally available therefor. Dividends on the outstanding
Common Stock may be declared for a period not to exceed twelve (12)
months in advance of such dividend.
Before payment of any dividend or making any distribution of
profits, there may be set aside out of the surplus or net profits of
the Corporation such sum or sums as the Board of Directors from time
to time, in its absolute discretion, think proper as a reserve fund to
meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose
as the Board of Directors shall think conducive to the interests of
the Corporation.
ARTICLE VIII
Miscellaneous
Vacancies
Section 1. Except as otherwise provided in the Amended and
Restated Certificate of Incorporation, if the office of any director,
or of any officer or agent, one or more, becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office,
or otherwise, the directors then in office, although less than a
quorum, by a majority vote, may choose a successor or successors who
shall hold office for the unexpired term in respect of which such
vacancy occurred.
Newly created directorships resulting from any increase in the
authorized number of directors may be filled by the directors then in
office, although less than a quorum, by a majority vote, and persons
so designated to fill such newly created directorships shall hold
office until the next election of the class for which they are chosen
and until their successors are elected and qualified, or until their
earlier resignation or removal.
Duties of Officers May Be Delegated
Section 2. In case of the absence of any officer of the
Corporation, or for any other reason that the Board of Directors may
deem sufficient, the Board may delegate, for the time being, the
powers or duties, or any of them, of such officer to any other
officer, or to any director, provided, a majority of the entire Board
concurs therein.
Inspection of Books
Section 3. The Board of Directors shall determine from time
to time whether, and if allowed, when and under what conditions and
regulations, the accounts and books of the Corporation (except such as
may by statute be specifically open to inspection) or any of them,
shall be open to the inspection of the stockholders, and the
stockholders' rights in this respect are and shall be restricted and
limited accordingly.
Checks
Section 4. All checks, drafts, or other demands for money,
made by the Corporation may be signed or endorsed as the case may be
by such officer or officers or agents as the Board of Directors may
from time to time designate.
Notes and Negotiable Paper
Section 5. All notes and negotiable papers (except checks and
drafts) shall be signed or endorsed, as the case may be, by the
Chairman of the Board, the President, the Senior Executive Vice-
President, and such other officers designated by the Board of
Directors, and countersigned by the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer, and may be
endorsed by any one of said officers, but such endorsement shall
require no countersignature; and all acceptances may be made,
endorsed or accepted by any one of said officers so designated.
Directors' Annual Statement
Section 6. The Board of Directors shall present at each
annual meeting, and when called for by vote of the stockholders at any
special meeting of stockholders, a full and clear statement of the
business and conditions of the Corporation.
Notices
Section 7. Whenever, under the provisions of these By-Laws,
notice is required to be given to any director, officer or
stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by mail, by depositing the same
in the post office or letter box, in a postpaid sealed wrapper,
addressed to such director, officer or stockholder, and such notice
shall be deemed to be given at the time when the same shall be thus
mailed; provided, however, that notices given under Sections 6 and 11
of Article IV shall be deemed to be given at the time received.
Any stockholder, director, or officer may waive any notice
required to be given under these By-Laws.
Profit Sharing
Section 8. After provision has been made for payment of such
dividends on the Common Stock as the Board of Directors may determine
then, the Board may, in its discretion, set apart such part of the
Corporation's net earnings as it may deem advisable, over and above
said dividends, for extra salaries and compensation to be paid to
valued officers or employees, who, by their services to the
Corporation have helped to produce such earnings.
The payment of net earnings thus to be divided, shall be placed
in the hands of a committee of three, selected by the Board,
designated as the Profit Sharing Committee, but no member of that
Committee shall directly or indirectly participate in the bonus
salaries thus paid, if any.
The Profit Sharing Committee shall have absolute control over the
net earnings so set apart for the payment of additional salaries under
the provisions of this section.
The Chief Executive Officer of the Corporation shall be ex-
officio chairman of the Profit Sharing Committee.
Amendments
Section 9. These By-Laws may be altered or amended by the
affirmative vote of the holders of a majority of the Common Stock
issued and outstanding at any regular or special meeting of the
stockholders if notice of the proposed alteration or amendment be
contained in the notice of the meeting, or by the affirmative vote of
a majority of the Board of Directors; provided, however, that (i)
until the first annual meeting of stockholders held on or after May 1,
1995, any alteration or amendment to, repeal of or adoption of a
provision inconsistent with Section 11 of Article IV hereof shall
require the consent of a majority of the Class A Directors, and (ii)
any alteration or amendment to, repeal of or adoption of a provision
inconsistent with Section 12 of Article IV shall require the
affirmative vote of a majority of the members of the Litigation
Committee and, until the first annual meeting of stockholders held on
or after May 1, 1995, shall also require the consent of a majority of
the Class A Directors; and provided, further, that no amendment with
respect to the time or place for the election of directors shall be
made within sixty days next before the day on which such election is
to be held, and that a notice of any such change of time or place
shall be given to each stockholder twenty days before the election is
held, in person or by notice or letter mailed to his last known post
office address.