Exhibit (3)
-----------
BY-LAWS
of
OWENS CORNING
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting.
An annual meeting of the stockholders, for the election of
directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before
the meeting, shall be held at such place, either within or
without the State of Delaware, on such date, and at such time as
the Board of Directors shall each year fix, which date shall be
within thirteen months subsequent to the last annual meeting of
stockholders.
Section 2. Special Meetings.
Except as otherwise required by law or by the Certificate of
Incorporation and subject to the rights of the holders of any
class or series of stock having a preference over the common
stock of the Corporation as to dividends or upon liquidation,
dissolution or winding up, special meetings of stockholders may
be called only by the Board of Directors pursuant to a resolution
approved by a majority of the whole Board of Directors. Special
meetings of stockholders shall be held at such place, within or
without the State of Delaware, date and time as the Board of
Directors shall fix.
Section 3. Organization and Conduct of Business.
Such person as the Board of Directors may have designated or,
in the absence of such a person, the Chief Executive Officer of
the Corporation or, in his absence, such person as may be chosen
by the holders of a majority of the shares entitled to vote who
are present, in person or by proxy, shall call to order any
meeting of the stockholders and act as chairman of the meeting.
In the absence of the Secretary of the Corporation, the secretary
of the meeting shall be such person as the chairman appoints. The
chairman of any meeting of stockholders shall determine the order
of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion
as he determines to be in order.
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 meeting, business must be (a)
specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the
direction of the Board of Directors, or (c) otherwise properly
brought before the meeting by a stockholder. For business to be
properly brought before a meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to
the Secretary of the Corporation. To be timely, a stockholder's
notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 60
days nor more than 90 days prior to the meeting; provided,
however, that in the event that notice of the date of the meeting
is not given to stockholders, or public disclosure by means of a
filing with the Securities and Exchange Commission of such date
is not made, at least 70 days prior to the date of such meeting,
notice by the stockholder to be timely must be so received not
later than the close of business on the 10th day following the
day on which such notice of the date of the meeting was mailed or
such public disclosure was made. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder
proposes to bring before the meeting (a) a brief description of
the business desired to be brought before the meeting and the
reasons for conducting such business at the 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 which are beneficially owned by the
stockholder and (d) any material interest of the stockholder in
such business.
Notwithstanding anything in the By-Laws to the contrary, no
business shall be conducted at a meeting of stockholders, except
in accordance with the procedures set forth in this Article I,
Section 3.
The chairman of a meeting of stockholders shall, if the facts
warrant, determine and declare to the meeting that business was
not properly brought before the meeting and in accordance with
the provisions of this Article I, Section 3, and if he should so
determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be
transacted.
Section 4. Nomination of Directors.
Only persons who are nominated in accordance with the
procedures set forth in this Article I, Section 4, shall be
eligible for election as directors by action of the stockholders.
Nominations of persons for election to the Board of Directors of
the Corporation may be made at a meeting of stockholders by or at
the direction of the Board of Directors or by any stockholder of
the Corporation entitled to vote for the election of directors at
the meeting who complies with the notice procedures set forth in
this Article I, Section 4. Such nominations, other than those
made by or at the direction of the Board of Directors, shall be
made pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be
delivered to or mailed and received at the principal executive
offices of the Corporation not less than 60 days nor more than 90
days prior to the meeting; provided, however, that in the event
that notice of the date of the meeting is not given to
stockholders, or public disclosure by means of a filing with the
Securities and Exchange Commission of such date is not made, at
least 70 days prior to the date of such meeting, notice by the
stockholder to be timely must be so received not later than the
close of business on the 10th day following the day on which such
notice of the date of the meeting was mailed or such public
disclosure was made.
Such stockholder's notice shall set forth (a) as to each
person whom the shareholder proposes to nominate for election or
re-election as a director, (i) the name, age, business address
and residence address of such person, (ii) the principal
occupation or employment of such person, and (iii) the class and
number of shares of the Corporation which are beneficially owned
by such person; and (b) as to the stockholder giving the notice
(i) the name and address, as they appear on the Corporation's
books, of such stockholder and (ii) the class and number of
shares of the Corporation which are beneficially owned by such
stockholder. The chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination
was not made in accordance with the procedures prescribed by the
By-Laws, and if he should so determine, he shall so declare to
the meeting and the defective nomination shall be disregarded.
Section 5. Notice of Meetings.
Written notice of the place, date, and time of all meetings of
stockholders, and the purpose or purposes for which the meeting
was called, shall be given, not less than ten nor more than sixty
days before the date on which the meeting is to be held, to each
stockholder entitled to vote at such meeting, except as otherwise
provided herein or required by the Delaware General Corporation
Law or the Certificate of Incorporation.
No notice of any meeting of stockholders need be given to any
stockholder who submits a signed waiver of notice to the
Secretary of the Corporation, whether before or after the
meeting. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the stockholder
attends a meeting, in person or by proxy, for the express purpose
of objecting, at the beginning of the meeting, to the transaction
of any business on the grounds that the meeting is not lawfully
called or convened. When a meeting is adjourned to another place,
date or time, written notice need not be given of the adjourned
meeting if the place, date and time thereof are announced at the
meeting at which the adjournment is taken; provided, however,
that if the date of any adjourned meeting is more than thirty
days after the date for which the meeting was originally noticed,
or if a new record date is fixed for the adjourned meeting,
written notice of the place, date, and time of the adjourned
meeting shall be given in conformity herewith. At any adjourned
meeting, any business may be transacted which might have been
transacted at the original meeting.
Section 6. Quorum.
At any meeting of the stockholders, the holders of a majority
of all the shares of the stock entitled to vote at the meeting,
present in person or by proxy, shall constitute a quorum for all
purposes, unless or except to the extent that the presence of a
larger number may be required by the Certificate of Incorporation
or by law. Where a separate vote by a class or classes is
required, a majority of the shares of such class or classes,
present in person or represented by proxy, shall constitute a
quorum entitled to take action with respect to the vote on that
matter.
If a quorum shall fail to attend any meeting, the chairman of
the meeting or the holders of a majority of the shares of stock
entitled to vote who are present, in person or by proxy, may
adjourn the meeting to another place, date, or time.
If a notice of any adjourned special meeting of stockholders
is sent to all stockholders entitled to vote thereat, stating
that it will be held with those present constituting a quorum,
then except as otherwise required by the Certificate of
Incorporation or by law, those present at such adjourned meeting,
in person or by proxy, shall constitute a quorum, and all matters
shall be determined by a majority of the votes cast at such
meeting.
Section 7. Record Dates.
In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders,
or to receive payment of any dividend or other distribution or
allotment of any rights, or 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 a record
date, which record date shall not precede the date on which the
resolution fixing the record date is adopted and which record
date shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to the
time for such other action as described in this section.
If no record date is fixed pursuant to the foregoing
paragraph: (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; and (b) 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 8. Proxies and Voting.
A stockholder may, by an instrument in writing or by a
transmission permitted by law filed in accordance with the
procedures established for the meeting, authorize any other
person or persons to act for such stockholder as proxy to vote
for such stockholder at any and all meetings of stockholders and
to waive all notices which such stockholder may be entitled to
receive.
Each stockholder shall have one vote for every share of stock
entitled to vote which is registered in his or her name on the
record date for the meeting, except as otherwise provided herein
or required by the Certificate of Incorporation or by law.
All voting, including on the election of directors, unless
otherwise required by the Certificate of Incorporation or by law,
may be by a voice vote; provided, however, that upon demand
therefor by a stockholder entitled to vote for the election of
directors, elections for directors shall be by ballot. Every vote
taken by ballots shall be counted by an inspector or inspectors
appointed by the chairman of the meeting.
All elections shall be determined by a plurality of the votes
cast, and, except as otherwise required by the Certificate of
Incorporation or by law, all other matters shall be determined by
a majority of the votes cast.
Section 9. Stock List.
A complete list of stockholders entitled to vote at any
meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder
and the number of shares registered in the name of each
stockholder, shall be open to the examination of any such
stockholder, for any purpose germane to the meeting, during
ordinary business hours for a period of at least ten (10) days
prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the
notice of the meeting, or if not so specified, at the place where
the meeting is to be held.
The stock list shall also be kept at the place of the meeting
during the whole time thereof and shall be open to the
examination of any such stockholder who is present. This list
shall presumptively determine the identity of the stockholders
entitled to vote at the meeting and the number of shares held by
each of them.
ARTICLE II
BOARD OF DIRECTORS
Section 1. Qualifications of Directors.
Each director shall be a person sui juris. No director need be
a stockholder of the Corporation.
Section 2. Number, Term of Office and Vacancies.
The number of directors who shall constitute the whole Board
of Directors, and the terms of office of each director, shall be
determined in accordance with the Certificate of Incorporation.
Newly created directorships and vacancies shall be filled in the
manner provided in the Certificate of Incorporation.
Section 3. Regular Meetings.
Regular meetings of the Board of Directors shall be held at
such place or places, on such date or dates, and at such time or
times as shall have been established by the Board of Directors
and publicized among all directors. A notice of each regular
meeting shall not be required.
Section 4. Special Meetings.
Special meetings of the Board of Directors may be called by
one-third of the directors then in office (rounded up to the
nearest whole number) or by the Chairman of the Board or Chief
Executive Officer and shall be held at such place, on such date,
and at such time as they or he shall fix. Notice of each special
meeting shall be given to each director by the Secretary or
Assistant Secretary of the Corporation or by the Chairman of the
Board, Chief Executive Officer, or directors calling said
meeting. Such notice may be given personally or by telephone, or
by written notice, telegram, cable, facsimile or telex, mailed or
directed to the address of the director appearing upon the books
of the Corporation, and shall set forth the date, time and place
of the meeting, but need not state the purpose or purposes
thereof unless required by the Certificate of Incorporation or by
law. Notice of the meeting shall be sufficient in time if
actually delivered to the director notified, or delivered
properly addressed and prepaid to the carrier thereof, or
telecopied, sufficiently early to be delivered in due and regular
course to the director notified, in time to enable him to attend
such meeting. Notice to any director of a meeting of the Board of
Directors may be waived by him, and shall be deemed waived by him
by his presence at the meeting.
Section 5. Quorum.
At any meeting of the Board of Directors, a majority of the
total number of the whole Board shall constitute a quorum for all
purposes. If a quorum shall fail to attend any meeting, a
majority of those present may adjourn the meeting to another
place, date, or time, without further notice or waiver thereof.
Section 6. Participation in Meetings By Conference Telephone.
Members of the Board of Directors, or of any committee
thereof, may participate in a meeting of the Board or any
committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other and such
participation shall constitute presence in person at such
meeting.
Section 7. Conduct of Business.
At any meeting of the Board of Directors, business shall be
transacted in such order and manner as the Board may from time to
time determine, and all matters shall be determined by the vote
of a majority of the directors present, except as otherwise
provided herein or required by the Certificate of Incorporation
or by law. Action may be taken by the Board of Directors without
a meeting if all members thereof consent thereto in writing, and
the writing or writings are filed with the minutes of proceedings
of the Board of Directors.
Section 8. Compensation of Directors.
Directors, pursuant to resolution of the Board of Directors,
may receive fixed fees and other compensation for their services
as directors, including, without limitation, their services as
members of committees of the Board of Directors.
Section 9. Approval of Minutes.
The minutes of meetings of the Board of Directors may be acted
upon at any subsequent meeting thereof and the approval of the
minutes of any meeting of the Board of Directors shall have the
effect of ratifying and validating any of the acts reported
therein with like effect as if such acts had been properly
approved or authorized at such meeting, providing that such
approval is by such vote as would have been sufficient to
authorize the acts so reported.
ARTICLE III
COMMITTEES
Section 1. Committees of the Board of Directors.
The Board of Directors, by a vote of a majority of the whole
Board may, from time to time, designate committees of the Board,
with such lawfully delegable powers and duties as it thereby
confers, to serve at the pleasure of the Board and shall, for
those committees and any other provided for herein, elect a
director or directors to serve as the member or members thereof,
designating, if it desires, other directors as alternate members
who may replace any absent or disqualified member at any meeting
of the committee. If the resolution which designates the
committee or a supplemental resolution of the Board of Directors
shall so provide, any committee so designated may exercise the
power and authority of the Board of Directors to declare a
dividend, to authorize the issuance of stock or to adopt a
certificate of ownership and merger pursuant to Section 253 of
the Delaware General Corporation Law. In the absence or
disqualification of any member of any committee and any alternate
member in his place, the member or members of the committee
present at the meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may by unanimous vote
appoint another member of the Board of Directors to act at the
meeting in the place of the absent or disqualified member.
Section 2. Conduct of Business.
Each committee may determine the procedural rules for meeting
and conducting its business and shall act in accordance
therewith, except as otherwise provided herein or required by the
Certificate of Incorporation or by law. Unless otherwise
designated by the Board of Directors, one-third of the members
shall constitute a quorum unless the committee shall consist of
one or two members, in which event one member shall constitute a
quorum; and all matters shall be determined by a majority vote of
the members present.
If a quorum shall fail to attend any meeting, a majority of
those present may adjourn the meeting to another place, date, or
time, without further notice or waiver thereof. Each committee
shall hold meetings upon the call of its chairman, the Chairman
of the Board, the Chief Executive Officer, or any one of its
members, at such date, time and place as set forth in the notice
of meeting.
Notice of each meeting of a committee of the Board of
Directors shall be given to each member by the Secretary or
Assistant Secretary of the Corporation, Chairman of the Board,
Chief Executive Officer or by the member of the committee calling
the meeting. Such notice may be given personally or by telephone
or by written notice, telegram, cable, facsimile or telex, mailed
or directed to the address of the member appearing upon the books
of the Corporation and shall set forth the date, time and place
of the meeting, but need not state the purpose or purposes
thereof unless required by the Certificate of Incorporation or by
law. Notice of the meeting shall be sufficient in time if
actually delivered to the member of the committee notified, or
delivered properly addressed and prepaid to the carrier thereof,
or telecopied, sufficiently early to be delivered in due and
regular course to the member notified, in time to enable him to
attend such meeting. Notice to any member of a meeting of a
committee of the Board may be waived by him, and shall be deemed
waived by him by his presence at the meeting. Action may be taken
by conference telephone as provided in Article II, Section 6.
Action may be taken by any committee without a meeting if all
members thereof consent thereto in writing, and the writing or
writings are filed with the minutes of the proceedings of such
committee.
Section 3. Officers.
The Board of Directors may designate one or more members of
any committee to act as the chairman and the secretary of any
committee, and each person so designated shall continue as such
during the pleasure of the Board. Unless so designated, a
committee may choose its own officers, including officers pro
tem, and if no secretary has been designated by the Board or the
committee, the Secretary of the Corporation shall act as
secretary of the committee and keep proper minutes of the
proceedings of such committee.
ARTICLE IV
OFFICERS
Section 1. Elected Officers.
The officers of the Corporation shall consist of a President,
one or more Vice Presidents, a Secretary, a Treasurer and such
other officers as the Board of Directors may from time to time
elect. The Board of Directors shall consider the election of
officers at its first meeting after every annual meeting of
stockholders and may consider that subject at such other times as
the Board may deem appropriate. Each officer shall hold office
until his successor is elected and qualified or until his earlier
resignation, retirement or removal. Each officer elected by the
Board of Directors or appointed pursuant to Section 2 of this
Article IV shall be retired from the Corporation, unless
mandatory retirement of such officer is prohibited by law, in
accordance with the Corporation's retirement programs not later
than the last day of the month in which the officer attains age
sixty-five. Any number of offices may be held by the same person.
Each officer elected by the Board of Directors or any person
thereto specifically authorized by the Board may, in the name and
on behalf of the Corporation, receive and receipt for moneys and
other properties, execute and deliver contracts, deeds,
mortgages, leases, bonds, undertakings, powers of attorney, and
other instruments, and assign, endorse, transfer, deliver,
release, and satisfy any and all contracts, mortgages, leases,
stock certificates, bonds, promissory notes, drafts, checks,
bills, orders, receipts, acquittances, and other instruments, and
may, when necessary, affix the corporate seal thereto.
The Chairman of the Board, President, Chief Executive Officer
and Vice Presidents elected by the Board may delegate, designate
or authorize named individuals to execute and attest on behalf of
the Corporation bids, contracts, performance bonds and similar
documents arising in the ordinary day-to-day operations of the
Corporation and its divisions.
Section 2. Appointed Officers.
The Chief Executive Officer designated by the Board of
Directors, or if a Chief Executive Officer has not been so
designated, the President of the Corporation, may, from time to
time, create and abolish such functional, divisional or regional
offices of Vice President or Assistant Vice President with such
powers and duties and subject to such limitations of authority as
he may prescribe and he may make appointments to, and removals
from, any such office, but such appointees shall not exercise
specific powers or duties pertaining to the elective offices of
the Corporation as provided in this Article IV of the By-Laws,
except as prescribed by the Board of Directors, either generally
or specially.
Section 3. Compensation.
The Board of Directors, or any committee thereof so
designated, may, from time to time, fix the compensation of the
several officers, agents, and employees of the Corporation and
may delegate to any officer of the Corporation, or any committee
composed of officers of the Corporation, the power to fix the
compensation of the officers, agents, and employees of the
Corporation.
Section 4. Chairman of the Board.
The Board of Directors may elect one of the members of the
Board as Chairman of the Board, who, if elected, shall preside at
all meetings of stockholders and directors and shall also perform
such duties as may be prescribed by the Board. Except where by
law the signature of the President is required, the Chairman of
the Board shall possess the same power as the President to sign
all certificates, contracts and other instruments of the
Corporation.
Section 5. Vice Chairman of the Board.
The Board of Directors may designate one of the members of the
Board as Vice Chairman of the Board who, in the absence or
disability of the Chairman of the Board or during any vacancy of
that office, shall perform the duties of the Chairman of the
Board. He shall also perform such duties as may be prescribed by
the Board or delegated to him by the Chief Executive Officer.
Section 6. Chief Executive Officer.
The Board of Directors shall designate either the Chairman of
the Board or the President as Chief Executive Officer of the
Corporation, who, subject to the direction and control of the
Board, shall have the responsibility for the general management
and control of the business and affairs of the Corporation and
shall perform all duties and have all powers which are commonly
incident to the office of chief executive or which the Board of
Directors delegates to him. He shall have power to sign all
stock certificates, contracts and other authorized instruments of
the Corporation and shall have general supervision and direction
of all other officers, employees and agents of the Corporation.
The Chief Executive Officer, prior to each annual meeting of
stockholders, shall submit to the Board of Directors a report of
the operations of the Corporation during the preceding fiscal
year and of its affairs, and from time to time shall report to
the Board all matters affecting the Corporation's interests which
may come to his knowledge.
Section 7. President.
The President, in the absence or disability of the Chairman of
the Board and the Vice Chairman of the Board or during vacancies
in both of such offices, shall preside at all meetings of
stockholders and directors. He shall perform such duties as may
be prescribed by the Board of Directors or delegated to him by
the Chief Executive Officer.
Section 8. Vice President.
Each Vice President shall have such powers and duties as may
be delegated to him by the Board of Directors. The Board of
Directors, or the Chief Executive Officer, or if a Chief
Executive Officer has not been so designated, the President, may
assign further descriptive titles to the Vice Presidents,
prescribe their duties and rank and may designate them
numerically.
Section 9. Secretary.
The Secretary shall keep an accurate record of all proceedings
of the stockholders and the Board of Directors and committees of
the Board; sign all certificates for shares and deeds, mortgages,
bonds, contracts, notes and other instruments executed by the
Corporation requiring his signature or as may be prescribed by
the Chief Executive Officer or the President; give notices of
meetings of stockholders and of directors; produce on request at
any meeting of stockholders a certified list of stockholders
arranged in alphabetical order, showing the number of shares held
by each; and perform such other and further duties as may from
time to time be prescribed by the Board, or a committee of the
Board, or as may from time to time be assigned or delegated to
him by the Chief Executive Officer or the President. He shall
have custody and care of the seal of the Corporation.
Section 10. Treasurer.
Subject to the direction and control of the Board of
Directors, the Chief Executive Officer, and any officer who may
be designated by the Board with responsibility for finance, the
Treasurer shall have custody of the funds and securities
belonging to the Corporation, and shall deposit all funds in the
name and to the credit of the Corporation in such depository or
depositories as may be designated by the Board or by an officer
or officers duly authorized by the Board to designate
depositories. He shall make such disbursements of the funds of
the Corporation as are authorized and shall render to the Board
of Directors, whenever the Board may require it, an account of
all his transactions as Treasurer. The Treasurer shall also
perform such other duties as the Board of Directors may prescribe
from time to time.
Section 11. Controller.
The Controller shall keep proper books of account and full and
accurate records of the receipts and disbursements of the funds
belonging to the Corporation and of its operations. The
Controller shall render to the Board of Directors, any of its
committees, the Chief Executive Officer, and the President, such
statements as to the financial condition of the Corporation and
as to its operations as each or any of them may request.
Section 12. All Officers.
The several officers shall perform all other duties usually
incident to their respective offices, or which may be required by
the stockholders or Board of Directors; shall from time to time,
and also whenever requested, report to the Board of Directors,
the Chairman of the Board, the Chief Executive Officer or the
President all matters affecting the Corporation's interests which
may come to their knowledge and, on the expiration of their terms
of office, shall respectively deliver all books, papers, money
and property of the Corporation in their hands to their
successors, or to the Chief Executive Officer, or to any person
designated by the Board to receive the same.
Section 13. Delegation of Authority.
The Board of Directors may from time to time delegate the
powers or duties of any officer to any other officers or agents,
notwithstanding any provision hereof.
Section 14. Removal.
Any officer of the Corporation may be removed at any time,
with or without cause, by the Board of Directors.
Section 15. Action with Respect to Securities of Other
Corporations.
Unless otherwise directed by the Board of Directors, each of
the Chairman of the Board, the Vice Chairman of the Board, the
President, any Vice President elected by the Board of Directors,
the Treasurer and the Secretary shall have power to vote and
otherwise act on behalf of the Corporation, in person or by
proxy, at any meeting of stockholders of, or with respect to any
action of stockholders of, any other corporation in which this
Corporation may hold securities and otherwise to exercise any and
all rights and powers which this Corporation may possess by
reason of its ownership of securities in such other corporation.
Section 16. Security.
The Board of Directors may require any officer, agent or
employee of the Corporation to provide security for the faithful
performance of his duties, in such amount and of such character
and on such terms as may be determined from time to time by the
Board of Directors.
ARTICLE V
STOCK
Section 1. Certificates of Stock.
Each stockholder shall be entitled to a certificate signed by,
or in the name of the Corporation by, the Chairman of the Board,
the Vice Chairman of the Board, the President or a Vice
President, and by the Secretary or an Assistant Secretary, or the
Treasurer or an Assistant Treasurer, certifying the number of
shares owned by him. Any or all of the signatures and the seal of
the Corporation on the certificate may be facsimile, engraved,
stamped or printed. In the event that any officer or transfer
agent who has signed or whose facsimile signature has been placed
upon a stock certificate shall have ceased to be such officer or
transfer agent before such certificate is issued, it may be
issued by the Corporation with the same effect as if the officer
or transfer agent were such at the date of issue.
Section 2. Transfers of Stock.
Transfers of stock shall be made only upon the transfer books of
the Corporation kept at an office of the Corporation or by a
transfer agent or agents designated to transfer shares of the
stock of the Corporation. Except where a certificate is issued in
accordance with Section 3 of Article V of these By-Laws, an
outstanding certificate for the number of shares involved shall
be surrendered for cancellation before a new certificate is
issued therefor.
Section 3. Lost, Stolen or Destroyed Certificates.
If a person claiming to be the holder of stock in the
Corporation claims that the certificate representing such stock
has been lost, stolen or destroyed, a duplicate certificate or
written instrument may be issued by the Corporation's Transfer
Agent for the stock upon being furnished with an affidavit of
such loss, theft or destruction in form and substance
satisfactory to the Transfer Agent and, upon giving to the
Corporation of a bond or agreement of indemnity executed by such
holder or owner with a surety company authorized to do business
in the State of Delaware or in the State of Ohio as surety, in
form approved by counsel for the Corporation, for full and
complete indemnification to the Corporation of all losses, costs
and expenses of every kind and nature whatsoever which may result
to the Corporation or any of its agents or employees by reason of
the issuance of such duplicate certificate.
Section 4. Regulations.
The issue, transfer, conversion and registration of
certificates of stock shall be governed by such other regulations
as the Board of Directors may establish.
ARTICLE VI
FINANCES
Section 1. Fiscal Year.
The fiscal year shall begin on the first day of January in
each year.
Section 2. Borrowings.
Any two of the following officers: the Chairman of the Board,
Vice Chairman of the Board, President, Executive Vice President,
Senior Vice President, Vice President-Finance, Treasurer,
Assistant Treasurer, or any employee of the Corporation
designated in writing by any two of said officers, may from time
to time in the name of the Corporation borrow money with an
obligation to repay not exceeding one year from any bank, trust
company or financial institution in such amounts as the officers
or designated employee may deem necessary or desirable for the
current needs of the Corporation.
All obligations for moneys borrowed by the Corporation, and
guarantees by the Corporation of moneys borrowed by subsidiaries
of the Corporation, shall bear the signatures of any two of the
following officers: the Chairman of the Board, Vice Chairman of
the Board, President, Executive Vice President, Senior Vice
President, Vice President-Finance, Treasurer and Assistant
Treasurer, only one of which may be an Assistant Treasurer.
Section 3. Banking Authorizations.
Except as provided in Section 2 of this Article VI, all
checks, drafts, notes, or other obligations for the payment of
money shall be signed by such person or persons as the Board of
Directors shall direct. The Board may delegate to any officer or
officers the power to designate a depository or depositories for
the Corporation and to appoint a signer or signers upon such
instruments in respect of the funds held by all or any particular
depositories. The Board may authorize the use of facsimile or
mechanically applied signatures or may delegate to an officer or
officers the power to authorize the use thereof. The Board may
authorize the use of Depository Transfer Instruments without
signature from one corporate account maintained with a duly
designated depository to any other corporate account maintained
either with the same or some other duly designated depository.
The Board may authorize the use of other generally accepted means
of transferring funds without signature from a corporate account
maintained with a duly designated depository to any other
corporate account or to the account of another party at the same
or some other depository.
ARTICLE VII
NOTICES
Section 1. Notices.
Except as otherwise specifically provided herein or required
by the Certificate of Incorporation or by law, all notices
required to be given, other than by publication in a newspaper,
to any stockholder, director, officer, employee or agent shall be
in writing and may in every instance be effectively given by hand
delivery to the recipient thereof, by depositing such notice in
the mails, postage paid, or by sending such notice by pre-paid
telegram or mailgram. Any such notice shall be addressed to such
stockholder, director, officer, employee or agent at his or her
last known address as the same appears on the books of the
Corporation. The time when such notice is received, if hand
delivered, or dispatched, if delivered through the mails or by
telegram or mailgram, shall be the time of the giving of the
notice.
Section 2. Waivers.
A written waiver of any notice, signed by a stockholder,
director, officer, employee or agent, whether before or after the
time of the event for which notice is to be given, shall be
deemed equivalent to the notice required to be given to such
stockholder, director, officer, employee or agent. Neither the
business to be transacted nor the purpose of any meeting need be
specified in such a waiver unless so required by the Certificate
of Incorporation or as otherwise provided in these By-Laws.
ARTICLE VIII
MISCELLANEOUS
Section 1. Facsimile Signatures.
In addition to the provisions for use of facsimile signatures
elsewhere specifically authorized in these By-Laws, facsimile
signatures of any officer or officers of the Corporation may be
used whenever and as authorized by the Board of Directors or a
committee thereof.
Section 2. Corporate Seal.
The corporate seal shall have inscribed thereon the name of
the Corporation, the year of its organization and the words
"Corporate Seal, Delaware".
Section 3. Reliance upon Books, Reports and Records.
Each director, each member of any committee designated by the
Board of Directors, and each officer of the Corporation shall, in
the performance of his duties, be fully protected in relying in
good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or
statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated,
or by any other person as to matters which such director,
committee member or officer reasonably believes are within such
other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Corporation.
Section 4. Time Periods.
In applying any provision of these By-Laws which require that
an act be done or not done a specified number of days prior to an
event or that an act be done during a period of a specified
number of days prior to an event, calendar days shall be used,
the day of the doing of the act shall be excluded, and the day of
the event shall be included.
Section 5. Gender.
Whenever the masculine gender is used in these By-Laws, it
shall be deemed to include both the male and female genders.
ARTICLE IX
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Corporation shall, to the fullest extent permitted by
applicable law from time to time in effect, (but, in the case of
any amendment of such law, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights
than such law permitted the Corporation to provide prior to such
amendment) indemnify any and all persons who may serve or who
have served at any time as directors or officers of the
Corporation, or who at the request of the Corporation may serve
or at any time have served as directors, officers, employees or
agents of another corporation (including subsidiaries of the
Corporation) or of any partnership, joint venture, trust or other
enterprise, and any directors or officers of the Corporation who
at the request of the Corporation may serve or at any time have
served as agents or fiduciaries of an employee benefit plan of
the Corporation or any of its subsidiaries, from and against any
and all of the expenses, liabilities or other matters referred to
in or covered by law whether the basis of such proceeding is
alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a
director, officer, employee or agent. The Corporation may also
indemnify any and all other persons whom it shall have power to
indemnify under any applicable law from time to time in effect to
the extent permitted by such law. The indemnification provided by
this Article IX shall not be deemed exclusive of any other rights
to which any person may be entitled under any provision of the
Certificate of Incorporation, other By-Law, agreement, vote of
stockholders or disinterested directors, or otherwise, both as to
action in an official capacity and as to action in another
capacity while holding such office, and shall be contract rights
and 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.
If a claim under this Article IX is not paid in full by the
Corporation within sixty days after a written claim has been
received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period
shall be twenty days, the director or officer may at any time
thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in
any such suit, or in a suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an
undertaking, the director or officer shall be entitled to be paid
also the expense of prosecuting or defending such suit. In (i)
any suit brought by the director or officer to enforce a right to
indemnification hereunder (but not in a suit brought by the
director or officer to enforce a right to an advancement of
expenses) it shall be a defense that, and (ii) any suit by the
Corporation to recover an advancement of expenses pursuant to the
terms of an undertaking, the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the
director or officer has not met any applicable standard for
indemnification set forth in the Delaware General Corporation
Law. Neither the failure of the Corporation (including its Board
of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit
that indemnification of the director or officer is proper in the
circumstances because the director or officer has met the
applicable standard of conduct set forth in the Delaware General
Corporation Law, nor an actual determination by the Corporation
(including its Board, independent legal counsel, or its
stockholders) that the director or officer has not met such
applicable standard of conduct, shall create a presumption that
the director or officer has not met the applicable standard of
conduct or, in the case of such a suit brought by the director or
officer, be a defense to such suit. In any suit brought by the
director or officer to enforce a right to indemnification or to
an advancement of expenses hereunder, or by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the director or officer
is not entitled to be indemnified, or to such advancement of
expenses, under this Article IX or otherwise shall be on the
Corporation.
The indemnification provided in this Article IX shall inure to
each person referred to herein, whether or not the person is
serving in any of the enumerated capacities at the time such
expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement are imposed or incurred, and whether or not
the claim asserted against him is based on matters which antedate
the adoption of this Article IX. None of the provisions of this
Article IX shall be construed as a limitation upon the right of
the Corporation to exercise its general power to enter into a
contract or understanding of indemnity with a director, officer,
employee, agent or any other person in any proper case not
provided for herein. Each person who shall act or have acted as a
director or officer of the Corporation shall be deemed to be
doing so in reliance upon such right of indemnification.
For purposes of this Article IX, the term "Corporation" shall
include constituent corporations referred to in subsection (h) of
Section 145 of the General Corporation Law of the State of
Delaware (or any similar provision of applicable law at the time
in effect).
ARTICLE X
AMENDMENTS
These By-Laws may be amended by a majority vote of the
stockholders entitled to vote at any annual or special meeting of
the stockholders provided notice of the proposed amendment shall
be included in the notice of the meeting. The Board of Directors,
by a majority vote of the whole Board at any meeting, may amend
these By-Laws, including By-Laws adopted by the stockholders,
provided that the stockholders may from time to time specify
particular provisions of the By-Laws which shall not be amended
by the Board of Directors.