KEYSTONE CONSOLIDATED INDUSTRIES, INC. AMENDED AND RESTATED BYLAWS
AMENDED AND RESTATED
BYLAWS
OF
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
a Delaware corporation
(Amended and Restated as of August 31, 2005)
KEYSTONE CONSOLIDATED INDUSTRIES, INC. AMENDED AND RESTATED BYLAWS
TABLE OF CONTENTS
Page
TABLE OF CONTENTS.................................................................................................i
ARTICLE I. REGISTERED AGENT AND OFFICES..........................................................................1
Section 1.1. Registered Agent and Office................................................................1
Section 1.2. Other Offices..............................................................................1
ARTICLE II. MEETINGS OF STOCKHOLDERS.............................................................................2
Section 2.1. Place and Time of Meetings.................................................................2
Section 2.2. Business to be Transacted at Meetings......................................................3
Section 2.3. Notice.....................................................................................5
Section 2.4. List of Stockholders.......................................................................5
Section 2.5. Quorum.....................................................................................6
Section 2.6. Proxies....................................................................................7
Section 2.7. Order of Business..........................................................................8
Section 2.8. Appointment of Inspectors of Election......................................................9
Section 2.9. Action Without a Meeting..................................................................10
Section 2.10. Fixing A Record Date.....................................................................12
Section 2.11. Telephone Meetings.......................................................................14
Section 2.12. Minutes..................................................................................15
ARTICLE III. DIRECTORS..........................................................................................15
Section 3.1. Number, Qualifications and Term of Office.................................................15
Section 3.2. Nomination of Director Candidates.........................................................17
Section 3.3. Removals..................................................................................19
Section 3.4. Vacancies.................................................................................19
Section 3.5. Annual Meeting............................................................................20
Section 3.6. Other Meetings and Notice.................................................................21
Section 3.7. Quorum....................................................................................21
Section 3.8. Committees................................................................................22
Section 3.9. Committee Rules...........................................................................23
Section 3.10. Telephonic Meetings......................................................................23
Section 3.11. Presumption of Assent....................................................................24
Section 3.12. Action Without a Meeting.................................................................24
Section 3.13. Compensation.............................................................................25
Section 3.14. Minutes..................................................................................25
ARTICLE IV. OFFICERS............................................................................................25
Section 4.1. Number....................................................................................25
Section 4.2. Election and Term of Office...............................................................26
Section 4.3. The Chairman of the Board.................................................................26
Section 4.4. The Vice Chairman of the Board............................................................27
Section 4.5. The President.............................................................................28
Section 4.6. The Chief Executive Officer...............................................................29
Section 4.7. The Chief Financial Officer...............................................................29
Section 4.8. Vice Presidents...........................................................................30
Section 4.9. The Secretary and Assistant Secretary.....................................................30
Section 4.10. The Treasurer and Assistant Treasurer....................................................31
Section 4.11. Vacancies................................................................................32
Section 4.12. Other Officers, Assistant Officers and Agents............................................33
Section 4.13. Normal Duties and Responsibilities of Officers...........................................33
ARTICLE V. INDEMNIFICATION AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS......................................34
Section 5.1. Indemnification...........................................................................34
Section 5.2. Advancement of Expenses...................................................................35
Section 5.3. Expenses of Contested Indemnification Claims..............................................35
Section 5.4. Indemnification Not Exclusive.............................................................36
Section 5.5. Survival of Indemnification and Advancement of Expenses...................................36
Section 5.6. Employees, Agents and Others..............................................................37
Section 5.7. Contract Right............................................................................37
Section 5.8. Insurance.................................................................................38
Section 5.9. Certain References Under Article V........................................................38
ARTICLE VI. STOCK CERTIFICATES..................................................................................39
Section 6.1. Form......................................................................................39
Section 6.2. Transfers.................................................................................40
Section 6.3. Lost or Destroyed Certificates............................................................41
Section 6.4. Registered Stockholders...................................................................41
Section 6.5. Restrictions on Transfers of Shares.......................................................42
ARTICLE VII. CERTAIN BUSINESS COMBINATIONS......................................................................42
ARTICLE VIII. GENERAL PROVISIONS.................................................................................43
Section 8.1. Dividends.................................................................................43
Section 8.2. Accounts..................................................................................43
ARTICLE IX. NOTICES.............................................................................................45
Section 9.1. General...................................................................................45
Section 9.2. Waivers...................................................................................45
Section 9.3. Attendance as Waiver......................................................................46
Section 9.4. Omission of Notice to Stockholders........................................................46
AMENDED AND RESTATED
BYLAWS
OF
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
a Delaware corporation
(Amended and Restated as of August __, 2005)
- -------------------------------------------------------------------------------
ARTICLE I.
REGISTERED AGENT AND OFFICES
Section 1.1. Registered Agent and Office. The registered agent and office
of the corporation shall be such person or entity and located at such place
within the state of Delaware as the board of directors may from time to time
determine.
Section 1.2. Other Offices. The corporation may also have offices at such
other places, both within and without the state of Delaware, as the
corporation's board of directors may from time to time determine or the business
of the corporation may require.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 2.1. Place and Time of Meetings. All meetings of the stockholders
shall be held on such date and at such time and place, within or without the
state of Delaware, as shall be determined, from time to time, by the board of
directors or by means of remote communication. The place at which a meeting of
stockholders shall be held shall be stated in the notice and call of the meeting
or a duly executed waiver of notice thereof. The chairman of the board, the
president, the chief executive officer, the board of directors or the holders of
at least 15 percent of the shares of the corporation that would be entitled to
vote at such a meeting may call special meetings of stockholders. If a special
meeting is called by any person or persons other than the board of directors,
the request shall be in writing, specifying the time of such meeting and the
general nature of the business proposed to be transacted, and shall be delivered
personally or sent by registered mail or by facsimile transmission to the
chairman of the board, the president, the chief executive officer or the
secretary of the corporation. No business may be transacted at such special
meeting other than specified in such notice. Nothing contained in this Section
shall be construed as limiting, fixing, or affecting the time when a meeting of
stockholders called by action of the board of directors may be held.
Section 2.2. Business to be Transacted at Meetings. At a meeting of the
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before a special meeting,
business must be specified in the notice of the meeting (or any supplement
thereto). To be properly brought before an annual meeting, business must be (a)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the board of directors, (b) otherwise properly brought
before the meeting by or at the direction of the board of directors or (c)
otherwise properly brought before the meeting by a stockholder. For business to
be properly brought before an annual meeting by a stockholder, the stockholder
must, in addition to any requirements imposed by federal securities law or other
applicable laws, have given timely notice thereof in writing to the secretary of
the corporation. To be timely for an annual meeting, a stockholder's notice must
be delivered to or mailed and received at the principal executive offices of the
corporation, no later than (i) if the corporation mailed notice of the last
annual meeting or publicly disclosed the date of such meeting and the annual
meeting for the current year has not changed more than thirty days from such
date (as if in the current year), forty-five days before the earlier of the date
(as if in the current year) of such mailing or public disclosure or (ii)
otherwise ninety days prior to the annual meeting. A stockholder's notice to the
secretary with regard to an annual meeting shall set forth as to each order of
business that the stockholder proposes to bring before the meeting (a) a brief
description of such business desired to be brought before the meeting and the
reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the corporation's books, of the stockholder proposing
such business, (c) the class and number of shares of the corporation that are
beneficially owned by the stockholder and (d) any material interest of the
stockholder in such business. The chairman of the meeting may refuse to bring
before a meeting any business not properly brought before the meeting in
compliance with this section.
Section 2.3. Notice. Notice of the time and place of an annual meeting of
stockholders and notice of the time, place and purpose or purposes of a special
meeting of the stockholders shall be given by remote communications or by
mailing written or printed notice of the same not less than 10, nor more than
60, days prior to the meeting, with postage prepaid, to each stockholder of
record of the corporation entitled to vote at such meeting, and addressed to the
stockholder's last known post office address or to the address appearing on the
corporate books of the corporation.
Section 2.4. List of Stockholders. The officer or agent having charge of
the stock transfer books of the corporation shall make, at least 10 days before
every meeting of the stockholders, a complete list of the stockholders entitled
to vote at such meeting arranged in alphabetical order, specifying the address
of and the number of shares registered in the name of each stockholder. Such
list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least 10 days prior to the meeting on
a reasonably accessible electronic network or, during ordinary business hours,
at the principal place of business of the corporation. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present. The original
stock transfer books shall be the only evidence as to who are the stockholders
entitled to examine such list or transfer book or to vote at any such meeting of
stockholders.
Section 2.5. Quorum. The holders of a majority of the votes entitled to be
cast at any meeting of stockholders, counted as a single class if there be more
than one class of stock entitled to vote at such meeting, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders except as otherwise provided by statute or by the certificate of
incorporation. Once a quorum is present at a meeting of the stockholders, the
stockholders represented in person or by proxy at the meeting may conduct such
business as may be properly brought before the meeting until it is adjourned,
and the subsequent withdrawal from the meeting by any stockholder or the refusal
of any stockholder represented in person or by proxy to vote shall not affect
the presence of a quorum at the meeting. If a quorum is not present, the
chairman of the meeting or the holders of the shares present in person or
represented by proxy at the meeting, and entitled to vote thereat, shall have
the power, by the affirmative vote of the holders of a majority of such shares,
to adjourn the meeting to another time and/or place. Unless the adjournment is
for more than thirty days or unless a new record date is set for the adjourned
meeting, no notice of the adjourned meeting need be given to any stockholder
provided that the time and place of the adjourned meeting were announced at the
meeting at which the adjournment was taken. At the adjourned meeting the
corporation may transact any business that might have been transacted at the
original meeting.
Section 2.6. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy. A telegram, telex, cablegram or reliable electronic transmission executed
or duly authorized by the stockholder, or a photographic, photostatic, facsimile
or reliable reproduction of a writing executed or duly authorized by the
stockholder shall be treated as an execution in writing for purposes of this
section. No proxy shall be valid after three years from the date of its
execution unless otherwise provided in the proxy. Each proxy shall be revocable
unless the proxy form conspicuously states that the proxy is irrevocable and the
proxy is coupled with an interest.
Section 2.7. Order of Business. The order of business at each such
stockholders meeting shall be as determined by the chairman of the meeting. One
of the following persons, in the order in which they are listed (and in the
absence of the first, the next, and so on), shall serve as chairman of the
meeting: the chairman of the board, vice chairman of the board, president, the
chief executive officer, vice presidents (in the order of their seniority if
more than one) and secretary. The chairman of the meeting shall have the right
and authority to prescribe such rules, regulations and procedures and to do all
such acts and things as are necessary or desirable for the proper conduct of the
meeting, including, without limitation, the establishment of procedures for the
maintenance of order and safety, limitations on the time allotted to questions
or comments on the affairs of the corporation, restrictions on entry to such
meeting after the time prescribed for the commencement thereof, and the opening
and closing of the voting polls.
Section 2.8. Appointment of Inspectors of Election. The board of directors
shall appoint one or more inspectors of election ("inspectors") to act at such
meeting or any adjournment or postponement thereof and make a written report
thereof. The board of directors may designate one or more persons as alternate
inspectors to replace any inspector who fails to act. If no inspector or
alternate is so appointed or if no inspector or alternate is able to act, the
chairman of the board, the vice chairman of the board, the president or the
chief executive officer shall appoint one or more inspectors to act at such
meeting. Each inspector, before entering upon the discharge of his or her
duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of his or her
ability. The inspectors may be directors, officers or employees of the
corporation.
Section 2.9. Action Without a Meeting.
(a) Any action to be taken at a meeting of the stockholders, may be
taken without a meeting, without prior notice, and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take such action at a meeting at
which the holders of all shares entitled to vote on the action were present
and voted.
(b) Every written consent of the stockholders shall bear the date of
signature of each stockholder who signs the consent. No written consent
shall be effective to take the action that is the subject of the consent
unless, within 60 days after the date of the earliest dated consent
delivered to the corporation as provided below, a consent or consents
signed by the holder or holders of shares having not less than the minimum
number of votes that would be necessary to take the action that is the
subject of the consent are delivered to the corporation by delivery to its
registered office, its principal place of business, or an officer or agent
of the corporation having custody of the books in which proceedings of
meetings of the stockholders are recorded. Such delivery shall be made by
hand or by certified or registered mail, return receipt requested, and in
the case of delivery to the corporation's principal place of business,
shall be addressed to the president or chief executive officer of the
corporation.
(c) A telegram, cablegram or electronic transmission by a stockholder,
or a photographic, photostatic, facsimile or other reliable reproduction of
a writing signed or transmitted by a stockholder, shall be regarded as
signed by the stockholder for the purposes of this section.
(d) Prompt notice of the taking of any action by stockholders without
a meeting by less than unanimous written consent shall be given to those
stockholders who did not consent in writing to the action and who, if the
action had been taken at a meeting, would have been entitled to notice of
the meeting if the record date for such meeting had been the date that
written consents signed by a sufficient number of holders to take the
action were delivered to the corporation.
Section 2.10. Fixing A Record Date. In order that the corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock or
for the purpose of any other lawful action, the board of directors may fix, in
advance, a record date, which shall not be more than 60 nor less than 10 days
before the date of such meeting, nor more than 60 days prior to any other
action.
If the board of directors does not so fix a record date:
(a) 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.
(b) 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 expressed.
(c) 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 2.11. Telephone Meetings. Stockholders may participate in and hold
a meeting by means of conference telephone or similar communication equipment by
means of which all persons participating in the meeting can hear each other.
Participation in such a meeting shall constitute presence in person at the
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
Section 2.12. Minutes. The stockholders shall cause regular minutes of
their proceedings to be kept, and such minutes shall be placed in the minute
book of the corporation.
ARTICLE III.
DIRECTORS
Section 3.1. Number, Qualifications and Term of Office. The business and
affairs of the corporation shall be managed by a board of directors. Subject to
the preferential voting rights of the holders of preferred stock or any other
class of capital stock of the corporation or any series of any of the foregoing
that is then outstanding, the board of directors shall consist of one or more
members. The number of members of the board of directors shall be fixed from
time to time (i) by the board of directors pursuant to a resolution adopted by a
majority of the entire board of directors or (ii) by the stockholders pursuant
to a resolution adopted by a majority of the holders of shares of the
corporation entitled to vote for the election of directors; provided, however,
that if the stockholders have acted to fix the number of directors, any action
by the board of directors to fix another number shall only become effective on
or after the first annual meeting of stockholders that follows such stockholder
action. Each director shall be elected at the annual meeting of the
stockholders, except as provided in Section 3.4, and each director elected shall
hold office until the next annual meeting of stockholders and until his or her
successor is duly elected and qualified or until his or her earlier death,
resignation or removal. No reduction of the authorized number of directors shall
have the effect of removing any director before that director's term expires.
Notwithstanding anything herein or in this document to the contrary, until the
later of either (i) August 31, 2008 or (ii) the obligations of the corporation
and its affiliates under the New Secured Note (as that term is defined in that
certain Debtors' Third Amended Joint Plan of Reorganization Pursuant to Chapter
11 of the United States Bankruptcy Code (the "Plan") confirmed by the United
States Bankruptcy Court for the Eastern District of Wisconsin (the "Court") on
August 10, 2005, in case number 04-22421, named In re FV Steel and Wire Company,
et al.) are satisfied: (y) the number of members of the board of directors of
the corporation shall be fixed at seven (7) , and (z) vacancies of the board of
directors of the corporation shall be filled pursuant to the terms of section 11
of the Lock-Up Agreement (as identified by and defined in the Plan).
Section 3.2. Nomination of Director Candidates. Subject to the preferential
voting rights of the holders of preferred stock or any other class of capital
stock of the corporation or any series of any of the foregoing that is then
outstanding, nominations for the election of directors may be made by the board
of directors or by any stockholder entitled to vote for the election of
directors. Any stockholder entitled to vote for the election of a director at a
meeting may nominate persons for whom such stockholder may vote only if written
notice of such stockholder's intent to make such nomination is given, either by
personal delivery or by United States mail, postage prepaid, to the secretary of
the corporation not later than (a) with respect to an election to be held at an
annual meeting of stockholders, (i) if the corporation mailed notice of the last
annual meeting or publicly disclosed the date of such meeting and the annual
meeting for the current year has not changed more than thirty days from such
date (as if in the current year), forty-five days before the earlier of the date
(as if in the current year) of such mailing or public disclosure or (ii)
otherwise ninety days prior to the annual meeting and (b) with respect to an
election to be held at a special meeting of stockholders for the election of
directors, the close of business on the tenth day following the date on which
notice of such meeting is first given to stockholders. Each such notice shall
set forth: (a) the name and address of the stockholder who intends to make the
nomination and of the person or persons intended to be nominated; (b) a
representation that the stockholder is a holder of record of stock of the
corporation entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to nominate the person or persons specified in the
notice; (c) a description of all arrangements or understandings between the
stockholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the stockholder; (d) such other information regarding each nominee proposed by
such stockholder as would have been required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had
such requirements been applicable and each nominee been nominated, or intended
to be nominated, by the board of directors; and (e) the consent of each nominee
to serve as a director of the corporation if so elected. The chairman of the
meeting may refuse to acknowledge the nomination of any person not made in
compliance with this section.
Section 3.3. Removals. Subject to the preferential voting rights of the
holders of preferred stock or any other class of capital stock of the
corporation or any series of any of the foregoing that is then outstanding, each
director may be removed from office at any time by the stockholders, with or
without cause, by the affirmative vote of the holders of at least a majority of
the voting power of all of the shares of the corporation entitled to vote for
the election of such director.
Section 3.4. Vacancies. Subject to the preferential voting rights of the
holders of preferred stock or any other class of capital stock of the
corporation or any series of any of the foregoing that is then outstanding and
except as otherwise required by law, all vacancies in the board of directors,
whether caused by resignation, death or otherwise, may be filled by a majority
of the remaining directors though less than a quorum; provided, however, that
any vacancy resulting from an increase in the number of directors that is the
result of a resolution adopted by the stockholders of the corporation may be
filled by the stockholders of the corporation in accordance with the laws of the
state of Delaware, any other applicable provisions of the certificate of
incorporation and these bylaws. Each director so chosen shall hold office for
the unexpired term of his or her predecessor and until his or her successor is
elected and qualified or until his or her earlier death, resignation or removal.
Section 3.5. Annual Meeting. The annual meeting of the board of directors
may be held without notice immediately after the annual meeting of stockholders
at the location of the stockholders' meeting. If not held immediately after the
annual meeting of the stockholders, the annual meeting of the board of directors
shall be held as soon thereafter as may be convenient.
Section 3.6. Other Meetings and Notice. Regular meetings of the board of
directors may be held without notice at such time and at such place as shall
from time to time be determined by the board of directors. Special meetings of
the board of directors may be called by or at the request of the chairman of the
board, the vice chairman of the board, the president or the or chief executive
officer and shall be called by the chairman of the board on the written request
of a majority of directors, in each case on at least twenty-four hours notice to
each director.
Section 3.7. Quorum. A majority of the total number of directors shall be
necessary at all meetings to constitute a quorum for the transaction of
business. If a quorum shall not be present at any meeting of the board of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present. At such adjourned meeting at which a quorum shall be present,
any business may be transacted that might have been transacted at the meeting as
originally notified and called.
Section 3.8. Committees. Standing or temporary committees consisting of one
or more directors of the corporation may be appointed by the board of directors
from time to time, and the board of directors may from time to time invest such
committees with such powers as it may see fit, subject to limitations imposed by
statute and such conditions as may be prescribed by the board of directors. An
executive committee may be appointed by resolution passed by a majority of the
entire board of directors and if appointed it shall have all the powers provided
by statute, except as specially limited by the board of directors. All
committees so appointed shall keep regular minutes of the transactions of their
meetings and shall cause them to be recorded in books kept for that purpose in
the office of the corporation, and shall report the same to the board of
directors at its next meeting. The board of directors 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. The board shall have the
power at any time to change the membership of, to increase or decrease the
membership of, to fill all vacancies in and to discharge any committee of the
board, or any member thereof, either with or without cause.
Section 3.9. Committee Rules. Each committee of the board of directors may
fix its own rules of procedure and shall hold its meetings as provided by such
rules, except as may otherwise be provided by the resolution of the board of
directors designating such committee, but in all cases the presence of at least
a majority of the members of such committee shall be necessary to constitute a
quorum.
Section 3.10. Telephonic Meetings. Members of the board of directors or any
committee designated by the board of directors may participate in any meeting of
the board of directors or such committee by means of a conference telephone or
other communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in such a meeting shall
constitute presence in person at such meeting.
Section 3.11. Presumption of Assent. A director of the corporation who is
present at a meeting of the board of directors or any committee thereof at which
action on any corporate matter is taken shall be deemed to have assented to the
action taken unless his or her dissent shall be entered in the minutes of the
meeting or unless he or she shall file his or her written dissent to such action
with the person acting as the secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 3.12. Action Without a Meeting. Any action required or permitted to
be taken at any meeting of the board of directors or of any committee thereof
may be taken without a meeting if all members of the board of directors or such
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the board of directors or
committee. Action taken pursuant to such written consent of the board of
directors or of any committee thereof shall have the same force and effect as if
taken by the board of directors or the committee, as the case may be, at a
meeting thereof.
Section 3.13. Compensation. The board of directors shall have the authority
to fix the compensation of directors.
Section 3.14. Minutes. The board of directors shall cause to be kept
regular minutes of its proceedings, and such minutes shall be placed in the
minute book of the corporation.
ARTICLE IV.
OFFICERS
Section 4.1. Number. The officers of the corporation shall be a chairman of
the board, a vice chairman of the board, a president, one or more vice
presidents, a secretary, a treasurer, and such other officers and assistant
officers as the board of directors may, by resolution, appoint. Any two or more
offices may be held by the same person. In its discretion, the board of
directors may choose not to fill any office for any period as it may deem
advisable, except the offices of president and secretary.
Section 4.2. Election and Term of Office. The officers of the corporation
shall be elected annually by the board of directors at the annual meeting of the
board of directors. If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as may be convenient.
Each officer shall hold office until the next annual meeting of the board of
directors and until his or her successor is duly elected and qualified or until
his or her earlier death, resignation or removal as hereinafter provided.
Section 4.3. The Chairman of the Board. The chairman of the board shall
preside at all meetings of the stockholders and directors. He or she shall have
general and active management of the business of the corporation, shall see that
all orders and resolutions of the board of directors are carried into effect
and, in connection therewith, shall be authorized to delegate to the vice
chairman of the board, president and other officers such of his or her powers
and duties as chairman of the board at such time and in such manner as he or she
may deem to be advisable. The chairman of the board shall be an ex officio
member of all standing committees and he or she shall have such other powers and
duties as may from time to time be assigned by the board of directors.
Section 4.4. The Vice Chairman of the Board. The vice chairman of the board
shall assist the chairman of the board in the management of the business of the
corporation, and, in the absence or disability of the chairman of the board,
shall preside at all meetings of the stockholders and the board of directors and
exercise the other powers and perform the other duties of the chairman of the
board or designate the executive officers of the corporation by whom such other
powers shall be exercised and other duties performed. The vice chairman of the
board shall be an ex officio member of all standing committees and he or she
shall have such other powers and duties as may from time to time be assigned by
the board of directors or by the chairman of the board. In addition to the
foregoing, the vice chairman of the board shall have such other powers, duties
and authority as may be set forth elsewhere in these bylaws.
Section 4.5. The President. The president shall be the corporation's chief
operating officer unless otherwise determined by the board of directors. The
president shall assist the chairman of the board in the management of the
business of the corporation, and, in the absence or disability of the chairman
of the board and the vice chairman of the board, shall preside at all meetings
of the stockholders and the board of directors and exercise the other powers and
perform the other duties of the chairman of the board or designate the executive
officers of the corporation by whom such other powers shall be exercised and
other duties performed. The president shall be an ex officio member of all
standing committees and he or she shall have such other powers and duties as may
from time to time be assigned by the board of directors or by the chairman of
the board. In addition to the foregoing, the president shall have such other
powers, duties, and authority as may be set forth elsewhere in these bylaws. If
the board of directors does not elect a chairman or vice chairman of the board,
the president shall also have the duties and responsibilities, and exercise all
functions, of the chairman and the vice chairman of the board as provided in
these bylaws.
Section 4.6. The Chief Executive Officer. The board of directors may
designate an individual, whether or not such individual is an officer of the
corporation, to serve as the chief executive officer of the corporation. The
chief executive officer shall have the duties and responsibilities, and exercise
all functions, as the board of directors may determine.
Section 4.7. The Chief Financial Officer. The board of directors may
designate an individual, whether or not such individual is an officer of the
corporation, to serve as the chief financial officer of the corporation. The
chief financial officer shall have the duties and responsibilities, and exercise
all functions, as the board of directors may determine.
Section 4.8. Vice Presidents. Each vice president shall have such powers
and discharge such duties as may be assigned from time to time by the chairman
of the board, the vice chairman of the board or the president. During the
absence or disability of the president, first the chief executive officer and in
the absence or disability of the chief executive officer, one such vice
president, when designated by the board of directors, shall exercise all the
functions of the president.
Section 4.9. The Secretary and Assistant Secretary. The secretary or the
chairman of the board shall issue notices for all meetings. The secretary shall
keep minutes of all meetings of the board of directors, the committees thereof
and the stockholders, shall have charge of the seal and the corporate books and
shall make such reports and perform such other duties as are incident to the
office, and perform such other duties designated or properly required by the
chairman of the board, the vice chairman of the board, the president or the
chief executive officer. The secretary shall keep, or cause to be kept, at the
principal executive office of the corporation or at the office of the
corporation's transfer agent or registrar, a share register, or a duplicate
share register, showing the names of all stockholders and their addresses, the
number and classes of shares held by each, the number and date of certificates
evidencing such shares, and the number and date of cancellation of every
certificate surrendered for cancellation. The assistant secretary shall be
vested with the same powers and duties as the secretary, and any act may be done
or duty performed by the assistant secretary with like effect as though done or
performed by the secretary. The assistant secretary shall have such other powers
and perform such other duties as may be assigned by the chairman of the board,
the vice chairman of the board, the president or the chief executive officer.
Section 4.10. The Treasurer and Assistant Treasurer. The treasurer shall
have the custody of all moneys and securities of the corporation and shall keep
regular books of account. He or she shall disburse the funds of the corporation
in payment of just demands against the corporation, or as may be ordered by the
chairman of the board, the vice chairman of the board, the president, the chief
executive officer or by the board of directors, taking proper vouchers for such
disbursements, and shall render to the board of directors from time to time as
may be required of him or her, an account of all transactions as treasurer and
of the financial condition of the corporation. The treasurer shall perform all
duties incident to the office, and perform such other duties designated or
properly required by the chairman of the board, the vice chairman of the board,
the president or the chief executive officer. The assistant treasurer shall be
vested with the same powers and duties as the treasurer, and any act may be
done, or duty performed by the assistant treasurer with like effect as though
done or performed by the treasurer. The assistant treasurer shall have such
other powers and perform such other duties as may be assigned by the chairman of
the board, the vice chairman of the board, the president or the chief executive
officer.
Section 4.11. Vacancies. Vacancies in any office arising from any cause may
be filled by the directors for the unexpired portion of the term with a majority
vote of the directors then in office. In the case of the absence or inability to
act of any officer of the corporation and of any person herein authorized to act
in his or her place, the board of directors may from time to time delegate the
powers or duties of such officer to any other officer or any director or other
person whom it may select.
Section 4.12. Other Officers, Assistant Officers and Agents. Officers,
assistant officers, and agents, if any, other than those whose duties are
provided for in these bylaws shall hold their offices for such terms and shall
exercise such powers and perform such duties as the board of directors may
determine.
Section 4.13. Normal Duties and Responsibilities of Officers. Unless
otherwise provided in these bylaws or the board of directors decides otherwise,
if an officer title is one commonly used for officers of a business corporation
formed under the Delaware General Corporation Law or any successor or similar
statute, the assignment of such title shall constitute the delegation to such
officer of the authority and duties that are normally associated with that
office, subject to any specific delegation of authority and duties made to such
officer by the board of directors.
ARTICLE V.
INDEMNIFICATION AND INSURANCE OF DIRECTORS, OFFICERS AND OTHERS
Section 5.1. Indemnification. To the fullest extent permitted by Delaware
law, the corporation shall indemnify any and all officers and directors of the
corporation from and against all expenses (including attorneys' fees),
liabilities or other matters arising out of their status as such or their acts,
omissions or services rendered by such persons in such capacities or otherwise
while serving at the request of the corporation. Unless specifically addressed
in a repeal or amendment of Delaware law with regard to a corporation's ability
to indemnify its officers and directors, no such repeal or amendment shall
adversely affect any indemnification rights of any person existing at the time
of such repeal or amendment.
Section 5.2. Advancement of Expenses. Reasonable expenses (including
attorneys' fees) incurred by a director or officer who was, is or is threatened
to be made a named defendant or respondent in a proceeding by reason of his or
her status as a director or officer of the corporation or services rendered by
such persons in such capacities or otherwise at the request of the corporation
or incurred by a director or officer for prosecuting a claim under Section 5.3
shall be paid by the corporation in advance of the final disposition of such
proceeding upon receipt of a written affirmation by the director or officer of
his or her good faith belief that he or she has met the standard of conduct
necessary for indemnification and a written undertaking by or on behalf of the
director or officer to repay such amount if it shall ultimately be determined
that he or she is not entitled to be indemnified by the corporation as
authorized in this Article.
Section 5.3. Expenses of Contested Indemnification Claims. If a claimant
makes a claim on the corporation under Section 5.1 or 5.2 and the corporation
does not pay such claim in full within thirty days after it has received such
written claim, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid the expenses of
prosecuting such claim.
Section 5.4. Indemnification Not Exclusive. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any other
bylaw, agreement, vote of stockholders or directors or otherwise, both as to
action in his or her official capacity and as to action in another capacity
while holding such office.
Section 5.5. Survival of Indemnification and Advancement of Expenses. The
indemnification and advancement of expenses provided by, or granted pursuant to,
this Article shall continue as to a person who has ceased to be a director or
officer and shall inure to the benefit of the heirs, executors and
administrators of such person.
Section 5.6. Employees, Agents and Others. To the fullest extent of
Delaware law, the corporation may grant rights of indemnification and
advancement of expenses to any person who is not at the time a current director
or officer of the corporation.
Section 5.7. Contract Right. Each of the rights of indemnification and
advancement of expenses provided by, or granted pursuant to, this Article shall
be a contract right and any repeal or amendment of the provisions of this
Article shall not adversely affect any such right of any person existing at the
time of such repeal or amendment with respect to any act or omission occurring
prior to the time of such repeal or amendment, and further, shall not apply to
any proceeding, irrespective of when the proceeding is initiated, arising from
the service of such person prior to such repeal or amendment.
Section 5.8. Insurance. To the fullest extent of Delaware law, the
corporation shall have power to purchase and maintain insurance on behalf of any
person, including one 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 enterprise against any liability
asserted against him or her and incurred by him or her in any such capacity, or
arising out of his or her status as such, whether or not the corporation would
have the power to indemnify him or her against such liability under the
provisions of this Article.
Section 5.9. Certain References Under Article V. For purposes of this
Article, references to "the corporation," "other enterprise," "proceeding" and
"serving at the request of the corporation" shall have the meanings given such
terms in Section 145 of the Delaware General Corporation Law or any successor or
similar statute.
ARTICLE VI.
STOCK CERTIFICATES
Section 6.1. Form. The shares of stock of the corporation shall be
represented by certificates, provided that the board of directors of the
corporation may, by resolution, provide that some or all shares of any or all
classes or series of the corporation's stock shall be uncertificated shares. Any
such resolution shall not apply to shares represented by a certificate until
such certificate is surrendered to the corporation. Notwithstanding the adoption
of such a resolution by the board of directors, every holder of uncertificated
shares of the corporation shall be entitled to have a stock certificate issued
to such holder upon request. Stock certificates shall be issued in numerical
order, and each stockholder shall be entitled to a certificate signed by the
chairman of the board, the president, the chief executive officer or any vice
president and the secretary, any assistant secretary, the treasurer or any
assistant treasurer, certifying to the number of shares owned by such
stockholder. Where, however, such certificate is signed by a transfer agent or
an assistant transfer agent or by a transfer clerk acting on behalf of the
corporation, and a registrar or by an agent acting in the dual capacity of
transfer agent and registrar, the signatures of any of the above-named officers
may be facsimile signatures. In the event that any officer who has signed, or
whose facsimile signature has been used on, a certificate ceases to be an
officer before the certificate has been delivered, such certificate may
nevertheless be adopted and issued and delivered by the corporation, as though
the officer who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be such
officer of the corporation.
Section 6.2. Transfers. Transfers of stock shall be made only upon the
transfer books of the corporation or respective transfer agents designated to
transfer the several classes of stock. Before a new certificate is issued for
shares or uncertificated shares are credited to a stockholder's account, as
applicable, any old certificate, if any, representing such shares shall be duly
surrendered for cancellation.
Section 6.3. Lost or Destroyed Certificates. The corporation may issue a
new stock certificate in place of any certificate theretofore issued by it,
alleged to have been lost, stolen or destroyed, and the corporation shall,
except as otherwise determined by the board of directors, the chairman of the
board, the president, the chief executive officer any vice president or other
authorized officer, require the owner of the lost, stolen or destroyed
certificate, or his or her legal representative, to give the corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section 6.4. Registered Stockholders. The corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such shares on the part of another person, whether or not the
corporation shall have express or other notice thereof, except as otherwise
provided by the laws of the state of Delaware.
Section 6.5. Restrictions on Transfers of Shares. Notice of any restriction
on the transfer of shares of the corporation's stock shall be placed on each
certificate of stock issued, or in the case of uncertificated shares, contained
in the notice sent to the registered holder of such shares in accordance with
the laws of the state of Delaware.
ARTICLE VII.
CERTAIN BUSINESS COMBINATIONS
The provision of Section 203 of the Delaware General Corporation Law shall
not apply to the corporation.
This Article VII shall be amended, altered or repealed only as provided in
Section 203 of the Delaware General Corporation Law.
ARTICLE VIII.
GENERAL PROVISIONS
Section 8.1. Dividends. Dividends upon the capital stock of the
corporation, subject to any applicable provisions of the certificate of
incorporation, may be declared by the board of directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in property or
in shares of the capital stock, subject to the applicable provisions of the
certificate of incorporation. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think in the best interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section 8.2. Accounts. The chairman of the board, vice chairman of the
board, president, the chief executive officer or any vice president is
authorized for and on behalf of the corporation: to establish, maintain and to
close depositary accounts, in the corporation's name, for the deposit and
withdrawal of corporation funds; to designate those individuals authorized to
withdraw funds or sign checks in said depositary accounts; and to execute
customer agreements with respect to such depositary accounts, including forms of
corporate resolutions, certified with respect to the approval of the board of
directors as of the date such forms of corporate resolutions are executed. The
secretary or assistant secretary is, authorized for and on behalf of the
corporation without further action of the board of directors to certify as to
the approval of the board of directors of forms of resolutions regarding any of
such depositary or trading accounts as of the date the officer of the
corporation executes the customer agreement with respect to each such account.
ARTICLE IX.
NOTICES
Section 9.1. General. Whenever the provisions of any statute or these
bylaws require notice to be given to any director, officer or stockholder, such
notice may be given personally or in writing by facsimile, by telegraph or by
depositing the same in the United States mail with postage prepaid addressed to
each director, officer or stockholder at his or her address, as the same appears
in the books of the corporation, and the time when the same shall be personally
given, sent by facsimile or telegraph or mailed shall be deemed to be the time
of the giving of such notice.
Section 9.2. Waivers. Whenever any notice whatever is required to be given
under provisions of law or of the certificate of incorporation or of these
bylaws, a waiver thereof in writing signed by the person or persons entitled to
said notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
Section 9.3. Attendance as Waiver. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except where a person
attends a meeting for the express purpose of objecting at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully
called or convened.
Section 9.4. Omission of Notice to Stockholders. Any notice required to be
given to any stockholder under any statutory provision, the certificate of
incorporation or these bylaws need not be given to the stockholder if:
(a) notice of two consecutive annual meetings and all notices of
meetings held or actions by written consent taken during the period between
those annual meetings, if any, or
(b) all, and at least two, payments (if sent by first class mail) of
distributions or interest on securities during a twelve month period
have been mailed to that person, addressed at his or her address as shown on the
share transfer records of the corporation, and have been returned undeliverable.
Any action or meeting taken or held without notice to such a person shall have
the same force and effect as if the notice had been duly given. If such a person
delivers to the corporation a written notice setting forth his or her then
current address, the requirement that notice be given to that person shall be
reinstated.
ADOPTED BY THE BOARD OF DIRECTORS AS OF August __, 2005
Sandy Myers, Secretary