EXHIBIT 3.1
AMENDED AND RESTATED BY-LAWS
OF
MUELLER INDUSTRIES, INC.
(Adopted and effective as of October 25, 2007)
ARTICLE I.
OFFICES
The registered office of the Corporation shall be in the City of
Dover, County of Kent, State of Delaware. The Corporation also may have
offices at such other places, within or without the State of Delaware, as
the Board of Directors determines from time to time or the business of the
Corporation requires.
ARTICLE II.
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings, etc. Except as otherwise provided in
these Amended and Restated By-laws ("By-laws"), all meetings of the
stockholders shall be held at such dates, times and places, within or
without the State of Delaware, as shall be determined by a majority of the
Entire Board of Directors (as hereinafter defined) and as shall be stated
in the notice of the meeting or in waivers of notice thereof. If the place
of any meeting is not so fixed, it shall be held at the registered office
of the Corporation in the State of Delaware.
Section 2. Annual Meeting. The annual meeting of stockholders for
the election of directors and the transaction of such other business as
properly may be brought before the meeting shall be held on such date after
the close of the Corporation's fiscal year, as a majority of the Entire
Board of Directors may from time to time determine.
Section 3. Special Meetings. Special meetings of the stockholders,
for any purpose or purposes, may be called by the Chairman or the President
and shall be called by the Chairman upon the written request of a majority
of the Entire Board of Directors. The request shall state the date, time,
place and purpose or purposes of the proposed meeting.
Section 4. Notice of Meetings. Except as otherwise required or
permitted by law, whenever the stockholders are required or permitted to
take any action at a meeting, written notice thereof shall be given,
stating the place, date and time of the meeting and, unless it is the
annual meeting, by or at whose direction it is being issued. The notice
also shall designate the place where the stockholders' list is available
for examination, unless the list is kept at the place where the meeting is
to be held. Notice of a special meeting also shall state the purpose or
purposes for which the meeting is called. A copy of the notice of any
meeting shall be delivered personally or shall be mailed, not less than ten
(10) nor more than sixty (60) days before the date of the meeting, to each
stockholder or record entitled to vote at the meeting. If mailed, the
notice shall be given when deposited in the United States mail, postage
prepaid, and shall be directed to each stockholder at his address as it
appears on the record of stockholders, unless he shall have filed with the
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Secretary of the Corporation a written request that notices to him be
mailed to some other address, in which case it shall be directed to him at
the other address. Notice of any meeting of stockholders shall not be
required to be given to any stockholder who shall attend the meeting,
except for the express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened, or who shall submit, either before or after the meeting, a signed
waiver of notice. Unless the Board of Directors, after the adjournment,
shall fix a new record date for an adjourned meeting or unless the
adjournment is for more than thirty (30) days, notice of an adjourned
meeting need not be given if the place, date and time to which the meeting
shall be adjourned is announced at the meeting at which the adjournment is
taken.
Section 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation of the Corporation, at all meetings of
stockholders the holders of a majority of the outstanding shares of the
Corporation entitled to vote at the meeting shall be present in person or
by proxy in order to constitute a quorum for the transaction of business.
Section 6. Voting. Except as otherwise provided by the Certificate
of Incorporation of the Corporation, at any meeting of the stockholders
every stockholder of record having the right to vote thereat shall be
entitled to one vote for every share of stock standing in his name as of
the record date and entitling him to so vote. A stockholder may vote in
person or by proxy. Except as otherwise provided by law or by the
Certificate of Incorporation of the Corporation, any corporate action to be
taken by a vote of the stockholders, other than the election of directors,
shall be authorized by not less than a majority of the votes cast at a
meeting by the stockholders present in person or by proxy and entitled to
vote thereon. Directors shall be elected as provided in Section 2 of
Article III of these By-laws. Written ballots shall not be required for
voting on any matter unless ordered by the Chairman of the meeting.
Section 7. Proxies. Every proxy shall be executed in writing by
the stockholder or by his attorney-in-fact.
Section 8. List of Stockholders. At least ten (10) days before
every meeting of stockholders, a list of the stockholders (including their
addresses) entitled to vote at the meeting and their record holdings as of
the record date shall be open for examination by any stockholder, during
ordinary business hours, 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 list
also shall be kept at and throughout the meeting.
Section 9. Conduct of Meetings. At each meeting of the
stockholders, the Chairman of the Board of Directors along with the
President, or either of them acting individually in the event of the
absence of the President or Chairman or, in their absence, one of the Vice
Chairman, if any, shall act as Chairmen or Chairman of the meeting. The
Secretary or, in his absence, any person appointed by the Chairmen or
Chairman of the meeting shall act as Secretary of the meeting and shall
keep the minutes thereof. The order of business at all meetings of the
stockholders shall be as determined by the Chairmen or Chairman of the
meeting.
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Section 10. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation of the Corporation,
any action which may be taken at any annual or special meeting of
stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed, in person or by proxy, by the holders of outstanding stock
having not less than the minimum number of votes that would be necessary to
authorize or take the action at a meeting at which all shares entitled to
vote thereon were present and voted in person or by proxy. Prompt notice of
the taking of the corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who have not consented
in writing, but who were entitled to vote on the matter.
Section 11. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the
Board of Directors and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (a) pursuant
to the Corporation's notice of meeting delivered pursuant to Article II,
Section 4 of these By-Laws, (b) by or at the direction of the Board of
Directors or (c) by any stockholder of the Corporation who is entitled to
vote at the meeting, who has complied with the notice procedures set forth
in clauses (2) and (3) of this paragraph (A) and the other requirements of
this Section 11 and who was a stockholder of record at the time such notice
was delivered to the Secretary of the Corporation.
(2) For nominations or other business to be
properly brought before an annual meeting by a stockholder pursuant to
clause (c) of paragraph (A)(1) of this Section 11, the stockholder must
have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice shall be delivered to the
Secretary of the Corporation at the principal executive offices of the
Corporation not less than sixty (60) days nor more than ninety (90) days
prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than thirty (30) days or delayed by more than sixty (60)
days from such anniversary date, notice by the stockholder to be timely
must be so delivered not earlier than the ninetieth (90) day prior to such
annual meeting and not later than the close of business on the later of the
sixtieth (60) day prior to such annual meeting or the tenth (10) day
following the day on which public announcement of the date of such meeting
is first made. Such stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or reelection
as a director all information relating to such person that is required to
be disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934 (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected), or any successor rule or
regulation; (b) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be
brought before the meeting, the reasons for conducting such business at the
meeting and any material interest in such business of such stockholder and
the beneficial owner, if any, on whose behalf the proposal is made; and (c)
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as to the stockholder giving the notice and the beneficial owner, if any,
on whose behalf the nomination or proposal is made (i) the name and address
of such stockholder, as they appear on the Corporation's books, and of such
beneficial owner and (ii) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(3) Notwithstanding anything in the second sentence
of paragraph (A)(2) of this Section 11 to the contrary, in the event that
the number of directors to be elected to the Board of Directors is
increased and there is no public announcement naming all of the nominees
for director or specifying the size of the increased Board of Directors
made by the Corporation at least seventy (70) days prior to the first
anniversary of the preceding year's annual meeting, a stockholder's notice
required by this Section 11 shall also be considered timely, but only with
respect to nominees for any new positions created by such increase, if it
shall be delivered to the Secretary of the Corporation at the principal
executive offices of the Corporation not later than the close of business
on the tenth (10) day following the day on which such public announcement
is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business
shall be conducted at a special meeting of stockholders as shall have been
brought before the meeting pursuant to the Corporation's notice of meeting
pursuant to Article II, Section 3 of these By-Laws. Nominations of persons
for election to the Board of Directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of the Corporation who is entitled to
vote at the meeting, who has complied with the notice procedures set forth
in this Section 11 and who was a stockholder of record at the time such
notice was delivered to the Secretary of the Corporation. Nomination by
stockholders of persons for election to the Board of Directors may be made
at such a special meeting of stockholders if the stockholder's notice
required by paragraph (A)(2) of this Section 11 shall have been delivered
to the Secretary at the principal executive offices of the Corporation not
earlier than the ninetieth (90) day prior to such special meeting and not
later than the close of business on the later of the sixtieth (60) day
prior to such special meeting or the tenth (10) day following the day on
which public announcement is first made of the date of the special meeting.
(C) General.
(1) Only persons who are nominated in accordance
with the procedures set forth in this Section 11 shall be eligible to serve
as directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 11. Except as otherwise
provided by law, the Certificate of Incorporation, as amended, or these By-
Laws, the chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the procedures set forth in
this Section 11 and, if any proposed nomination or business is not in
compliance with this Section 11, to declare that such defective proposal or
nomination shall be disregarded.
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(2) For purposes of this by-Law, "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or
in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(3) Notwithstanding the foregoing provisions of
this Section 11, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth in this Section 11. Nothing in this
Section 11 shall be deemed to affect any rights of stockholders to request
inclusion of proposals in the Corporation's proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. Number of Board Members. The Board of Directors shall
consist of one (1) or more members. Until such time as the Board of
Directors determines otherwise, the number of directors shall be nine (9).
The number of directors may be reduced or increased from time to time by
resolution of a majority of the Entire Board of Directors, but no decrease
may shorten the term of an incumbent director. When used in these By-laws,
the phrase "Entire Board of Directors" means the total number of directors
which the Corporation would have if there were no vacancies.
Section 2. Election and Term. Except as otherwise provided by law
or by these By-laws, the directors shall be elected at the annual meeting
of the stockholders and the persons receiving a plurality of the votes cast
shall be so elected. Subject to his earlier death, resignation or removal
as provided in Section 3 of this Article III, each director shall hold
office until his successor shall have been duly elected and shall have
qualified.
Section 3. Removal. A director may be removed, but only with
cause, by action of a majority of the Entire Board of Directors or the
stockholders.
Section 4. Resignations. Any director may resign at any time by
giving written notice of his resignation to the Corporation. A resignation
shall take effect at the time specified therein or, if the time when it
shall become effective shall not be specified therein, immediately upon its
receipt, and, unless otherwise specified therein, the acceptance of a
resignation shall not be necessary to make it effective.
Section 5. Vacancies. Any vacancy in the Board of Directors
arising from an increase in the number of directors or otherwise may be
filled by the vote of a majority of the remaining directors on the Board of
Directors. Subject to his earlier death, resignation or removal as provided
in Section 3 of this Article III, each director so elected shall hold
office until his successor shall have been duly elected and shall have
qualified or for the unexpired term of his predecessor, as the case may be.
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Section 6. Place of Meetings. Except as otherwise provided in
these By-laws, all meetings of the Board of Directors shall be held at such
places, within or without the State of Delaware, as the Board of Directors
determines from time to time.
Section 7. Annual Meeting. The annual meeting of the Board of
Directors shall be held either (a) without notice immediately after the
annual meeting of stockholders and in the same place, or (b) as soon as
practicable after the annual meeting of stockholders on such date and at
such time and place as the Board of Directors determines.
Section 8. Regular Meetings. Regular meetings of the Board of
Directors shall be held on such dates and at such places and times as the
Board of Directors determines. Notice of regular meetings need not be
given, except as otherwise required by law.
Section 9. Special Meetings. Special meetings of the Board of
Directors may be called by the Chairman of the Board of Directors or the
President of the Corporation and shall be called by the Chairman of the
Board of Directors, the President or the Secretary upon the written request
of a majority of the Entire Board of Directors. The request shall state the
date, time, place and purpose or purposes of the proposed meeting.
Section 10. Notice of Meetings. Notice of each special meeting of
the Board of Directors (and of each annual meeting held pursuant to
subdivision (b) of Section 7 of this Article III) shall be given, not later
than 48 hours before the meeting is scheduled to commence, by the Chairman
of the Board of Directors, the President or the Secretary and shall state
the place, date and time of the meeting. Notice of each meeting may be
delivered to a director by hand or given to a director orally (whether by
telephone or in person) or mailed or telegraphed to a director at his
residence or usual place of business, provided, however, that if notice of
less than 72 hours is given it may not be mailed. If mailed, the notice
shall be deemed to have been given when deposited in the United States
mail, postage prepaid, and if telegraphed, the notice shall be deemed to
have been given when the contents of the telegram are transmitted to the
telegraph service with instructions that the telegram immediately be
dispatched. Notice of any meeting need not be given to any director who
shall submit, either before or after the meeting, a signed waiver of notice
or who shall attend the meeting, except if such director shall attend for
the express purpose of objecting at the beginning thereof to the
transaction of any business because the meeting is not lawfully called or
convened. Notice of any adjourned meeting, including the place, date and
time of the new meeting, shall be given to all directors not present at the
time of the adjournment, as well as to the other directors unless the
place, date and time of the new meeting is announced at the adjourned
meeting.
Section 11. Quorum. A majority of the Entire Board of Directors
shall constitute a quorum and be sufficient for the transaction of
business, and any act of a majority of the Entire Board of Directors at
which a quorum is present shall be the act of the Board of Directors.
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Section 12. Conduct of Meetings. At each meeting of the Board of
Directors, the Chairman of the Board of Directors along with the President,
or either of them acting individually in the event of the absence of the
Chairman or the President or, in their absence, one of the Vice Chairmen
shall act as Chairmen or Chairman of the meeting. The Secretary or, in his
absence, any person appointed by the Chairmen or Chairman of the meeting
shall act as Secretary of the meeting and keep the minutes thereof. The
order of business at all meetings of the Board of Directors shall be as
determined by the Chairmen or Chairman of the meeting.
Section 13. Committees of the Board. The Board of Directors, by
resolution adopted by a majority of the Entire Board of Directors, may
designate an executive committee and other committees, each consisting of
one (1) or more directors. Each committee (including the members thereof)
shall serve at the pleasure of the Board of Directors and shall keep
minutes of its meetings and report the same to the Board of Directors. The
Board of Directors shall initially have an Audit Committee, with the powers
enumerated in Section 14 hereof. The Board of Directors may designate one
or more directors as alternate members of any committee. Alternate members
may replace any absent or disqualified member or members at any meeting of
a committee. In addition, in the absence or disqualification of a member of
a committee, if no alternate member has been designated by the Board of
Directors, the members present at any meeting and not disqualified from
voting, whether or not they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place
of the absent or disqualified member.
Except as limited by law, each committee, to the extent provided in
the resolution establishing it, shall have and may exercise all the powers
and authority of the Board of Directors with respect to all matters.
Section 14. Audit Committee. The Audit Committee shall consist of
at least two (2) members of the Board of Directors. The Audit Committee's
powers shall include, but shall not be limited to, the following: to make
recommendations to the Board of Directors regarding the appointment of the
Corporation's independent accountants; to review and approve any major
changes in accounting policy; to review the arrangements for, scope and
results of the independent audit; to review and approve the scope of non-
audit services to be performed by the Corporation's independent accountants
and to consider the possible effect on the independence of the accountants;
to review the effectiveness of the Corporation's internal auditing
procedures and personnel; to review the Corporation's policies and
procedures for compliance with disclosure requirements with respect to
conflicts of interest and for prevention of unethical, questionable or
illegal payments; and to take such other actions as the Board of Directors
shall from time to time so authorize.
Section 15. Compensation Committee. The Compensation Committee
shall consist of at least two (2) members of the Board of Directors. The
Compensation Committee's powers shall include, but shall not be limited to
the following: to establish compensation policies, to recommend salary
levels, salary increases and bonus payments, to grant stock options, to
provide an overview of the Company's compensation programs and to take such
other actions as the Board of Directors shall from time to time authorize.
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Section 16. Operation of Committees. A majority of all the members
of a committee shall constitute a quorum for the transaction of business,
and the vote of a majority of all the members of a committee present at a
meeting at which a quorum is present shall be the act of the committee.
Each committee shall adopt whatever other rules of procedure it
determines for the conduct of its activities.
Section 17. Consent to Action. Any action required or permitted to
be taken at any meeting of the Board of Directors or of any committee may
be taken without a meeting if all members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing
or writings are filed with the minutes of proceedings of the Board of
Directors or committee.
Section 18. Meetings Held Other Than in Person. Members of the
Board of Directors or any committee may participate in a meeting of the
Board of Directors or committee, as the case may be, 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 the meeting.
ARTICLE IV.
OFFICERS
Section 1. Executive Officers, etc. The executive officers of the
Corporation shall be a Chairman of the Board of Directors, a Chief
Executive Officer, a President, a Chief Operating Officer, a Secretary and
a Treasurer. The Board of Directors also may elect or appoint one or more
Vice Chairmen of the Board of Directors (who, if so elected or appointed
would be executive officers of the Corporation), one or more Vice
Presidents (any of whom may be designated as Executive Vice Presidents or
otherwise), or any other officers it deems necessary or desirable for the
conduct of the business of the Corporation, each of whom shall have such
powers and duties as the Board of Directors determines. Any officer may
devote less than one hundred percent (100%) of his working time to his
activities as such if the Board of Directors so approves.
Section 2. Duties.
(a) The Chairman of the Board of Directors. The Chairman of
the Board of Directors shall perform, in the absence or disability of the
Chief Executive Officer, the duties and exercise the powers of the Chief
Executive Officer and shall have such other powers and duties as a majority
of the Entire Board of Directors or the Chief Executive Officer assigns to
him, including, if so assigned, general charge and control of the business
and affairs of the Corporation. The Chairman of the Board of Directors
along with the President shall preside at all meetings of the stockholders
and the Board of Directors, and in the event of the absence of the Chairman
of the Board of Directors the President alone shall preside.
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(b) The Vice Chairman of the Board of Directors. The Vice
Chairman or, if there shall be more than one, the Vice Chairmen, of the
Board of Directors shall, subject to the control of the Board of Directors,
have such powers and duties as the Chairman or a majority of the Entire
Board of Directors assigns to him. Notwithstanding the granting of powers
to and imposition of duties upon the Chairman of the Board of Directors and
President under this Article, whenever these By-laws grant powers or impose
duties jointly upon the Chairman or the President, those same powers are
granted and those same duties are imposed upon the Vice Chairman, or Vice
Chairmen if there shall be more than one.
(c) The President. The President shall assist the Chief
Executive Officer in the direction of the business and affairs of the
Corporation, subject to the control of the Chief Executive Officer, the
Chairman and the Vice Chairman or Vice Chairmen, if any, and he shall have
such other powers and duties as a majority of the Entire Board of Directors
assigns to him. The President along with the Chairman of the Board of
Directors shall preside at all meetings of the stockholders and the Board
of Directors, and in the event of the absence of the President, the
Chairman alone shall preside.
(d) The Vice President. The Vice President or, if there
shall be more than one, the Vice Presidents, if any, in the order of their
seniority or in any other order determined by the Board of Directors, shall
perform, in the absence of disability of the President, the duties and
exercise the powers of the President and shall have such other powers and
duties as the Chief Executive Officer, the Chairman, the President, or a
majority of the Entire Board of Directors assigns to him or to them.
(e) The Secretary. Except as otherwise provided in these
By-laws or as directed by the Board of Directors, the Secretary shall
attend all meetings of the stockholders and the Board of Directors; he
shall record the minutes of all proceedings in books to be kept for that
purpose; he shall give notice of all meetings of the stockholders and
special meetings of the Board of Directors; and he shall keep in safe
custody the seal of the Corporation and, when authorized by the Board of
Directors, he shall affix the same to any corporate instrument. The
Secretary shall have such other powers and duties as the Board of Directors
assigns to him.
(f) The Treasurer. Subject to the control of the Board of
Directors, the Treasurer shall have the care and custody of the corporate
funds and the books relating thereto; he shall perform all duties incident
to the office of Treasurer; and he shall have such other powers and duties
as the Board of Directors assigns to him.
(g) Chief Executive Officer. Subject to the control of the
Board of Directors, the Chief Executive Officer shall have general charge
and control of the business and affairs of the Corporation.
(h) Chief Operating Officer. The Chief Operating Officer
shall have responsibility for the day-to-day operation of the Corporation,
subject to the control of the Chief Executive Officer, the Chairman and the
Vice Chairman or Vice Chairmen, if any, and he shall have such other powers
and duties as a majority of the Entire Board of Directors assigns to him.
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Section 3. Election; Removal. Subject to his earlier death,
resignation or removal as hereinafter provided, each officer shall hold his
office until his successor shall have been duly elected and shall have
qualified. Any officer may be removed at any time, with or without cause,
by a majority of the Entire Board of Directors.
Section 4. Resignations. Any officer may resign at any time by
giving written notice of his resignation to the Corporation. A resignation
shall take effect at the time specified therein or, if the time when it
shall become effective shall not be specified therein, immediately upon its
receipt, and, unless otherwise specified therein, the acceptance of a
resignation shall not be necessary to make it effective.
Section 5. Vacancies. If an office becomes vacant for any reason,
a majority of the Entire Board of Directors may fill the vacancy, and each
officer so elected shall serve for the remainder of his predecessor's term.
ARTICLE V.
PROVISIONS RELATING TO STOCK CERTIFICATES AND STOCKHOLDERS
Section 1. Certificates. The shares of stock of the Corporation
shall be represented by certificates, or shall be uncertificated shares
that may be evidenced by a book-entry system maintained by the registrar of
such stock, or a combination of both. To the extent that shares are
represented by certificates, such certificates whenever authorized by the
Board of Directors, shall be in such form as required by law and as
approved by the Board of Directors. Each certificate shall be signed in
the name of the Corporation by the Chairman, a Vice Chairman, the President
or any Vice President and by the Secretary, the Treasurer or any Assistant
Secretary or any Assistant Treasurer and shall bear the seal of the
Corporation or a facsimile thereof. If any certificate is countersigned by
a transfer agent or registered by a registrar, other than the Corporation
or its employees, the signature of any officer of the Corporation may be a
facsimile signature. In case any officer, transfer agent or registrar who
shall have signed or whose facsimile signature was placed on any
certificate shall have ceased to be such officer, transfer agent or
registrar before the certificate shall be issued, it may nevertheless be
issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 2. Lost Certificates, etc. The Corporation may issue a
new certificate for shares, if such shares were certificated, in place of
any certificate theretofore issued by it, alleged to have been lost,
mutilated, stolen or destroyed, and the Board of Directors may require the
owner of the lost, mutilated, stolen or destroyed certificate, or his legal
representatives, to make an affidavit of that fact and to give the
Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation on account of the alleged
loss, mutilation, theft or destruction of the certificate or the issuance
of a new certificate.
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Section 3. Transfers of Shares. Transfers of shares shall be
registered on the books of the Corporation maintained for that purpose
after due presentation, if such shares are certificated, of the stock
certificates therefore appropriately endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, or, if such
shares are uncertificated, upon proper instructions from the registered
holder thereof or by such holder's attorney thereunto authorized by a power
of attorney duly executed and filed with the Secretary of the Corporation
or the transfer agent for such stock, if any.
Section 4. Record Date. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to or
dissent from any proposal without a meeting, or for the purpose of
determining stockholders entitled to receive payment of any dividend or
other distribution or the allotment of any rights, or for the purpose of
any other action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty (60) nor less than ten (10) days
before the date of any such meeting, nor more than sixty (60) days prior to
any other action.
ARTICLE VI.
INDEMNIFICATION
Section 1. Indemnification. The Corporation shall, to the fullest
extent permitted by the General Corporation Law of the State of Delaware,
as the same exists or may be hereafter amended or supplemented, or by any
successor thereto, indemnify any and all persons whom it shall have power
to indemnify under said Law from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said Law. Such
right of indemnification shall continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such person. No director shall
have any personal liability to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that
this provision shall not eliminate or limit the liability of any director:
a) for any breach of the director's duty of loyalty to the Corporation or
its stockholders, b) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, c) under
Section 174 of the Delaware General Corporation Law, or d) for any
transaction from which the director derived an improper personal benefit.
Such right of indemnification shall continue as to a person who has ceased
to be a director, officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such person. The
indemnification provided for herein shall not be deemed exclusive of any
other rights to which those seeking indemnification may be entitled under
the Certificate of Incorporation of the Corporation, any agreement, vote of
stockholders or disinterested directors or otherwise.
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Section 2. Insurance. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability
under the provisions of Section 1 of the By-laws or under Section 145 of
the General Corporation Law or any other provision of law.
ARTICLE VII.
GENERAL PROVISIONS
Section 1. Dividends, etc. To the extent permitted by law, the
Board of Directors shall have full power and discretion, subject to the
provisions of the Certificate of Incorporation of the Corporation and the
terms of any other corporate document or instrument binding upon the
Corporation, to determine what, if any, dividends or distributions shall be
declared and paid or made.
Section 2. Seal. The Corporation's seal shall be in such form as
is required by law and as shall be approved by the Board of Directors.
Section 3. Fiscal Year. The fiscal year of the Corporation shall
be determined by the Board of Directors.
Section 4. Voting Shares in Other Corporations. Unless otherwise
directed by the Board of Directors, shares in other Corporations which are
held by the Corporation shall be represented and voted only by the Chairman
of the Board of Directors or the President or by a proxy or proxies
appointed by either of them acting individually.
ARTICLE VIII.
AMENDMENTS
By-laws may be adopted, amended or repealed by a majority of the
Entire Board of Directors, subject to the right of the stockholders to
adopt, amend or repeal any By-law made by a majority of the Entire Board of
Directors.
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