Exhibit (3)
OWENS CORNING
BY-LAWS
As Adopted April 21, 1988
OWEN CORNING
BY-LAWS
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I STOCKHOLDERS
1. Annual Meeting 1
2. Special Meetings 1
3. Organization and Conduct of Business 1
4. Nomination of Directors 2
5. Notice of Meetings 3
6. Quorum 3
7. Record Dates 4
8. Proxies and Voting 4
9. Stock List 5
ARTICLE II BOARD OF DIRECTORS
1. Qualifications of Directors 5
2. Number, Term of Office and Vacancies 5
3. Regular Meetings 5
4. Special Meetings 5
5. Quorum 6
6. Participation in Meetings by
Conference Telephone 6
7. Conduct of Business 6
8. Compensation of Directors 6
9. Approval of Minutes 6
ARTICLE III COMMITTEES
1. Committees of the Board of Directors 6
2. Conduct of Business 7
3. Officers 8
ARTICLE IV OFFICERS
1. Elected Officers 8
2. Appointed Officers 8
3. Compensation 9
4. Chairman of the Board 9
5. Vice Chairman of the Board 9
SECTION PAGE
ARTICLE IV OFFICERS (Continued)
6. Chief Executive Officer 9
7. President 9
8. Vice President 9
9. Secretary 10
10. Treasurer 10
11. Controller 10
12. All Officers 10
13. Delegation of Authority 10
14. Removal 11
15. Action with Respect to Securities of Other
Corporations 11
16. Security 11
ARTICLE V STOCK
1. Certificates of Stock 11
2. Transfers of Stock 11
3. Lost, Stolen or Destroyed Certificates 12
4. Regulations 12
ARTICLE VI FINANCES
1. Fiscal Year 12
2. Borrowings 12
3. Banking Authorizations 12
ARTICLE VII NOTICES
1. Notices 13
2. Waivers 13
ARTICLE VIII MISCELLANEOUS
1. Facsimile Signatures 13
2. Corporate Seal 13
3. Reliance upon Books, Reports and Records 14
4. Time Periods 14
5. Gender 14
ARTICLE IX INDEMNIFICATION OF DIRECTORS
AND OFFICERS 14
ARTICLE X AMENDMENTS 16
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 written proxy filed in
accordance with the procedures established for
the meeting, authorize any other person 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.