15
BYLAWS
OF
VALMONT INDUSTRIES, INC.
RESTATED AS OF JUNE 26, 1995
ARTICLE I
SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the
shareholders shall be held on the fourth Monday in the month of
April in each year at the hour of 9:30 a.m. (local time), for the
purpose of electing directors and for the transaction of such
other business as may come before the meeting. If the day fixed
for the annual meeting shall be a legal holiday, such meeting
shall be held on the next succeeding business day. If the
election of directors shall not be held on the day designated
herein for the annual meeting of the shareholders, or at any
adjournment thereof, the Board of Directors shall cause the
election to be held at a special meeting of the shareholders as
soon thereafter as conveniently may be.
Section 2. Special Meetings. Special meetings of the
stockholders, for any purpose or purposes, may be called at any
time by the President of this Corporation, who shall call the
same upon demand in writing being made upon him by a majority of
the directors of the Corporation.
Section 3. Place of Meetings. The Board of Directors may
designate any place, either within or without the State of
Delaware as the place of meeting for any annual meeting or for
any special meeting called by the Board of Directors. A waiver
of notice signed by all shareholders entitled to vote at a
meeting may designate any place, either within or without the
State of Delaware, as the place for holding of such meeting. If
no designation is made, or if a special meeting be otherwise
called, the place of meeting shall be the offices of the
Corporation at Valley, Nebraska.
Section 4. Notice of Meeting. Written or printed notice
stating the place, day and hour of the meeting and, in the case
of a special meeting, the purpose or purposes for which the
meeting is called, shall be delivered not less than ten nor more
than sixty days before the date of the meeting, either personally
or by mail, by or at the direction of the President or the
Secretary, or the officer or persons calling the meeting, to each
shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder
at his address as it appears on the stock transfer books of the
Corporation, with postage thereon prepaid.
Section 5. Closing of Transfer Books or Fixing of Record
Date. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders or any
adjournment thereof, or shareholders entitled to receive payment
of any dividend, or in order to make a determination of
shareholders for any other purpose, the Board of Directors of the
Corporation may provide that the stock transfer books shall be
closed for a stated period of time but not to exceed, in any
case, sixty days. If the stock transfer books shall be closed
for the purpose of determining shareholders entitled to notice of
or to vote at a meeting of shareholders, such books shall be
closed for at least ten days immediately preceding such meeting.
In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any
such determination of shareholders, such date in any case to be
not more than sixty days prior to the date on which the
particular action requiring such determination of shareholders is
to be taken. If the stock transfer books are not closed and no
record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or
shareholders entitled to receive payment of a dividend, the date
on which notice of the meeting is mailed or the date on which the
resolution of the Board of Directors declaring such dividend is
adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has
been made as provided in this section, such determination shall
apply to any adjournment thereof.
Section 6. Voting Lists. The officer or agent having
charge of the stock transfer books for shares of the Corporation
shall make, at least ten days before each meeting of
shareholders, a complete list of the shareholders entitled to
vote at such meeting, or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares
held by each, which list, for a period of ten days prior to such
meeting, shall be kept on file at the registered office of the
Corporation and shall be subject to inspection by any shareholder
at any time during usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and
shall be subject to the inspection of any shareholder during the
whole time of the meeting. The original stock transfer book
shall be prima facie evidence as to who are the shareholders
entitled to examine such list or transfer books or to vote at any
meeting of shareholders.
Section 7. Quorum. A majority of the outstanding shares of
the Corporation entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders.
If less than a majority of the outstanding shares are represented
at a meeting, a majority of the shares so represented may adjourn
the meeting from time to time without further notice. At such
adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been
transacted at the meeting as originally notified. The
shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
Section 8. Proxies. At all meetings of shareholders, a
shareholder may vote by proxy executed in writing by the
shareholder or by his duly authorized attorney in fact. Such
proxy shall be filed with the Secretary of the Corporation before
or at the time of the meeting. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise
provided in the proxy.
Section 9. Voting of Shares. In each meeting of
stockholders except as otherwise provided by statute or
Certificate of Incorporation, every holder of record of stock
entitled to vote shall be entitled to one vote in person or by
proxy for each share of such stock standing in his name on the
records of the Corporation. Elections of directors shall be
determined by a plurality of the votes cast thereat and except as
otherwise provided by statute, the Certificate of Incorporation
or these Bylaws, all other actions shall be determined by a
majority of the votes cast at such meeting. Each proxy to vote
shall be in writing and signed by the stockholder or by his duly
authorized attorney. At all elections of directors, the voting
shall be by ballot or in such other manner as may be determined
by the stockholders present in person or by proxy entitled to
vote at such election. With respect to any other matter
presented to the stockholders for their consideration at a
meeting, any stockholder entitled to vote may on any question
demand a vote by ballot.
Section 10. Voting of Shares by Certain Holders. Shares
standing in the name of another corporation may be voted by such
officer, agent or proxy as the Bylaws of such corporation may
prescribe, or, in the absence of such provision, as the Board of
Directors of such corporation may determine.
Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy,
without a transfer of such shares into his name. Shares standing
in the name of a trustee may be voted by him, either in person or
by proxy, but no trustee shall be entitled to vote shares held by
him without a transfer of such shares into his name.
Shares standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a
receiver may be voted by such receiver without the transfer
thereof into his name if authority so to do be contained in an
appropriate order of the court by which such receiver was
appointed.
A shareholder whose shares are pledged shall be entitled to
vote such shares until his shares have been transferred into the
name of the pledgee, and thereafter the pledgee shall be entitled
to vote the shares so transferred.
Shares of its own stock belonging to the Corporation or held
by it in a fiduciary capacity shall not be voted, directly or
indirectly, at any meeting, and shall not be counted in
determining the total number of outstanding shares at any given
time.
Section 11. Informal Action by Shareholders. Any action
required to be taken at a meeting of the shareholders, or any
other action which may be taken at a meeting of the shareholders,
may be taken without a meeting if a consent in writing, setting
forth the action so taken shall be signed by all of the
shareholders entitled to vote with respect to the subject matter
thereof.
Such consent shall have the same force and effect as a
unanimous vote of shareholders, and may be stated as such in any
articles or document filed with the Secretary of State under this
act.
Section 12. Notice of Stockholder Business. At an annual
meeting of the shareholders, only such business shall be
conducted as shall have been brought before the meeting (a) by or
at the direction of the Board of Directors or (b) by any
shareholder of Valmont who complies with the notice procedures
set forth in this Section 12. For business to be properly
brought before an annual meeting by a shareholder, a shareholder
must have given timely notice thereof in writing to the Secretary
of Valmont. To be timely, a shareholder's notice must be
delivered to or mailed and received at the principal executive
offices of Valmont, not less than 30 days nor more than 60 days
prior to the meeting; provided, however, that in the event that
less than 40 days' notice or prior public disclosure of the date
of the meeting is given or made to shareholders, notice by the
shareholder to be timely must be received not later than the
close of business on the 10th day following the day on which such
notice of the date of the annual meeting was mailed or such
public disclosure was made. A shareholder's notice to the
Secretary shall set forth as to each matter the shareholder
proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at
the annual meeting, (b) the name and address, as they appear on
Valmont's books, of the shareholder proposing such business, (c)
the class and number of shares of Valmont which are beneficially
owned by the shareholder and (d) any material interest of the
shareholder in such business. Notwithstanding anything in the
Bylaws to the contrary, no business shall be conducted at an
annual meeting except in accordance with he procedures set forth
in this Section 12. The Chairman of an annual meeting shall, if
the facts warrant, determine and declare to the meeting that
business was not properly brought before the meeting in
accordance with the provisions of this Section 12, and if the
Chairman should so determine, shall so declare to the meeting and
any such business not properly brought before the meeting shall
not be transacted.
Section 13. Notice of Director Nominees. Only persons who
are nominated with the procedures set forth in these Bylaws shall
be eligible for election as directors. Nominations of persons
for election to the Board of Directors of Valmont may be made at
a meeting of shareholders (a) by or at the direction of the Board
of Directors or (b) by any shareholder of Valmont entitled to
vote for the election of directors at the meeting who complies
with the notice procedures set forth in this Section 13. 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 Valmont. To be timely, a
shareholder's notice shall be delivered to or mailed and received
at the principal executive offices of Valmont not less than 30
days nor more than 60 days prior to the meeting; provided,
however, that in the event that less than 40 days notice or prior
public disclosure of the date of the meeting is given or made to
shareholders, notice by the shareholder to be timely must be
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
shareholder's notice shall set forth (a) as to each person whom
the shareholder proposes to nominate for election or re-election
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, as
amended (including such person's written consent to be named as a
nominee and to serving as the director if elected), and (b) as to
the shareholder giving the notice (I) the name and address, as
they appear on Valmont's books, of such shareholder the (ii) the
class and number of shares of Valmont which are beneficially
owned by such shareholder. at the request of the Board of
Directors any person nominated by the Board of Directors for
election as a director shall furnish to the Secretary of Valmont
that information required to be set forth in a shareholder's
notice of nomination which pertains to the nominee. No person
shall be eligible for election as a director of Valmont unless
nominated in accordance with the procedures set forth in the
Bylaws. 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 Bylaws,
and if the Chairman should so determine, shall so declare to the
meeting and the defective nomination shall be disregarded.
ARTICLE II
BOARD OF DIRECTORS
Section 1. General Powers. The business and affairs of the
Corporation shall be managed by its Board of Directors.
Section 2. Number, tenure and Qualifications. The number
of directors of the Corporation shall be fixed by resolution of
the Board of Directors, and may be altered from time to time by a
majority vote of the members of the Board of Directors present at
any regular or special meeting of the Board. Each director shall
hold office until the next annual meeting of stockholders and
until his successor shall have been elected and qualified.
Section 3. Regular Meetings. A regular meeting of the
Board of Directors shall be held without other notice than this
Bylaw immediately after, and at the same place as, the annual
meeting of shareholders. The Board of Directors may provide, by
resolution, the time and place, either within or without the
State of Delaware, for the holding of additional regular meetings
without other notice than such resolution.
Section 4. Special Meetings. Special meetings of the Board
of Directors may be called by or at the request of the President
or any two directors. The person or persons authorized to call
the special meetings of the Board of Directors may fix any place,
either within or without the State of Delaware, as the place for
holding any special meeting of the Board of Directors called by
them.
Section 5. Notice. Notice of any special meeting shall be
given at least two days previously thereto by written notice
delivered personally or mailed to each director at this business
address, or by telegram. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by
telegram such notice shall be deemed to be delivered when the
telegram is delivered to the telegraph company. Any director may
waive notice of any meeting. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting,
except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice
or waiver of notice of such meeting.
Section 6. Quorum. A majority of the number of directors
fixed by Section 2 of this Article II shall constitute a quorum
for the transaction of business at any meeting of the Board of
Directors, but if less than such majority is present at a
meeting, a majority of the directors present may adjourn the
meeting from time to time without further notice.
Section 7. Manner of Acting. The act of the majority of
the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 8. Vacancies. Any vacancy occurring in the Board
of Directors may be filled by the affirmative vote of the
majority of the remaining Board of Directors. A director elected
to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Newly created directorships resulting
from any increase in the authorized number of directors may be
filled by the affirmative vote of the majority of the remaining
directors though less than a quorum of the Board of Directors, or
by the stockholders at an annual or special meeting thereof;
provided, however, that the Board of Directors shall not have the
power to elect more than two directors to fill increases in the
authorized number of directors between successive annual meetings
of the stockholders.
Section 9. Compensation. By resolution of the Board of
Directors, the directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors, and may be
paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary as director. No such payment shall
preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
Section 10. Presumption of Assent. A director of the
Corporation who is present at a meeting of the Board of Directors
at which action on any corporate matter is taken shall be
presumed to have assented to the action taken unless his dissent
shall be entered into the minutes of the meeting or unless he
shall file his written dissent to such action with the person
acting as the Secretary of the meeting before the adjournment
thereof or shall forward such dissent by registered mail to the
Secretary of the Corporation immediately after the adjournment of
the meeting. Such right to dissent shall not apply to a director
who voted in favor of such action.
Section 11. Committees. The Board of Directors may in its
discretion, by resolution passed by a majority of the whole
Board, designate from among its members one or more committees
which shall consist of two or more directors. The Board may
designate one or more directors as alternate members of any such
committee who may replace any absent or disqualified member at
any meeting of the committee. Such committees shall have and may
exercise such powers as shall be conferred or authorized by the
resolution appointing them. A majority of any such committee may
determine its action and fix the time and place of its meetings
unless the Board of Directors shall otherwise provide. The Board
shall have power at any time to change the membership of any such
committee to fill vacancies in it or to dissolve it.
Section 12. Executive Committee. There shall be an
Executive Committee of the Board of Directors consisting of the
President and three director chosen by the Board who shall not
hold any office in the Corporation. Each of the members of the
Committee shall continue to hold office until his respective
successor shall be appointed by the Board.
The Executive committee shall have power to take any and all
action which the Board of Directors might itself have the legal
power to take at any time between meetings of the Board of
Directors, provided, however, that such Committee shall not have
the power to take action on any of the following matters, the
exclusive power to deal with which is resolved to the Board of
Directors: filling of vacancies on the Board of Directors or
Executive Committee; fixing of compensation of officers; approval
of any borrowings by the Corporation which involve the issuance
of securities having a maturity of longer than one year from the
date of issue or which involve the creation of any mortgages,
liens, pledges or other encumbrances on any substantial portion
of the corporate assets; approval of any amendment to the
Certificate of Incorporation or Bylaws; approval of or
recommending to the stockholders any sale, lease or exchange of
all or substantially all of the Corporation's property and
assets; declaration of a dividend or authorization of an issuance
of stock; or approval of a dissolution or liquidation of the
Corporation.
Meetings of the Executive Committee may be called and held
in such manner as the Board of Directors shall prescribe by
resolution, and the Board shall also determine the requirements
for quorum and voting at such meetings. The Committee shall keep
minutes of its proceedings and may adopt such rules for the
regulation of its business as are not inconsistent with these
Bylaws and resolutions of the Board of Directors with respect to
the Executive Committee. Members of the Committee shall be
entitled to receive such fees for attendance at meetings as may
be fixed by the Board of Directors.
ARTICLE III
OFFICERS
Section 1. Number. The officers of the corporation shall
be a President, one or more Vice Presidents (the number thereof
to be determined by the Board of Directors), a Secretary, and a
Treasurer, each of whom shall be elected by the Board of
Directors. Such other officers and assistant officers as may be
deemed necessary may be elected or appointed by the Board of
Directors. Any two or more offices may be held by the same
person, except the offices of President and Secretary.
Section 2. Election and Term of Office. The officers of
the Corporation to be elected by the Board of Directors shall be
elected annually by the Board of Directors at the first meeting
of the Board of Directors held after each annual meeting of the
shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as
conveniently may be. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified
or until his death or until he shall resign or shall have been
removed in the manner hereinafter provided.
Section 3. Removal. Any officer or agent elected or
appointed by the Board of Directors may be removed by the Board
of Directors whenever in its judgment the best interests of the
Corporation would be served thereby, but such removal shall be
without prejudice to the contract rights, if any, of the person
so removed.
Section 4. Vacancies. A vacancy in an office because of
death, resignation, removal, disqualification or otherwise, may
be filled by the Board of Directors for the unexpired portion of
the term.
Section 5. President. The President shall be the principal
executive officer of the Corporation and, subject to the control
of the Board of Directors, shall in general supervise and control
all of the business and affairs of the Corporation. He shall,
when present, preside at all meetings of the shareholders and of
the Board of Directors. He may sign, with the Secretary or any
other proper officer of the Corporation thereunto authorized by
the Board of Directors, certificates for shares of the
Corporation, any deeds, mortgages, bonds, contracts, or other
instruments which the Board of Directors has authorized to be
executed, except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors or by
these Bylaws to some other officer or agent of the Corporation,
or shall be required by law to be otherwise signed or executed,
and in general shall perform all duties incident to the office of
President and such other duties as may be prescribed by the Board
of Directors from time to time.
Section 6. Acting President; Vice Presidents. In the
absence of the President, or in the event of his death, inability
or refusal to act, the Board of Directors shall select the acting
President, who shall perform the duties of the President, and
when so acting, shall have all the powers of and be subject to
all the restrictions upon the President. Any Vice President may
sign, with the Secretary or an Assistant Secretary, certificates
for shares of the Corporation and shall perform such other duties
as from time to time may be assigned to him by the President or
by the Board of Directors.
Section 7. The Secretary. The Secretary shall: (a) keep
the minutes of the shareholders' and of the Board of Directors'
meetings in one or more books provided for that purpose; (b) see
that all notices are duly given in accordance with the provisions
of these Bylaws or as required by law; (c) be custodian of the
corporate records and of the seal of the Corporation and see that
the seal of the Corporation is affixed to all documents the
execution of which on behalf of the Corporation under its seal is
duly authorized; (d) keep a register of the post office address
of each shareholder which shall be furnished to the Secretary by
such shareholder; (e) sign with the President, or a Vice
President, certificates for shares of the Corporation, the
issuance of which shall have been authorized by resolution of the
Board of Directors; (f) have general charge of the stock transfer
books of the Corporation; and (g) in general perform all duties
incident to the office of Secretary and such other duties as from
time to time may be assigned to him by the President or by the
Board of Directors.
Section 8. The Treasurer. If required by the Board of
Directors, the Treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or
sureties as the Board of Directors shall determine. He shall:
(a) have charge and custody of and be responsible for all funds
and securities of the Corporation; receive and give receipts for
moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the
Corporation in such banks, trust companies or other depositories
as shall be selected in accordance with provisions of Article V
of these Bylaws; and (b) in general perform all of the duties
incident to the office of Treasurer and such other duties as from
time to time may be assigned to him by the President or by the
Board of Directors.
Section 9. Assistant Secretaries and Assistant Treasurers.
The Assistant Secretaries, when authorized by the Board of
Directors, may sign with the President or a Vice President
certificates for shares of the Corporation the issuance of which
shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if
required by the Board of Directors, give bonds for the faithful
discharge of their duties in such sums and with such sureties as
the Board of Directors shall determine. The Assistant
Secretaries and Assistant Treasurers, in general, shall perform
such duties as shall be assigned to them by the Secretary or the
Treasurer, respectively, or by the President or the Board of
Directors.
Section 10. Salaries. The salaries of the officers shall
be fixed from time to time by the Board of Directors and no
officer shall be prevented from receiving such salary by reason
of the fact that he is also a director of the Corporation.
ARTICLE IV
INDEMNIFICATION
Section 1. Actions by Others. Valmont shall indemnify any
person who was or is a party to or is threatened to be made a
party to any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of
Valmont) by reason of the fact that he is or was a director,
officer, employee or agent of Valmont, or is or was serving at
the request of Valmont as a director, officer, employee or agent
of Valmont, or is or was serving at the request of Valmont as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, or other enterprise, against
expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of Valmont, and, with
respect to any criminal action or proceedings, had no reasonable
cause to believe his conduct was criminal. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of
Valmont, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was criminal.
Section 2. Actions by or in the Right of Valmont. Valmont
shall indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action
or suit by or in the right of Valmont to procure a judgment in
its favor by reason of the fact that he is or was a director,
officer, employee or agent of Valmont, or is or was serving at
the request of Valmont as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of Valmont and except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable to Valmont unless and only to the extent that the Delaware
Court of Chancery or the court in which such action or suit was
brought shall determine upon application that despite the
adjudication of liability but in view of all the circumstances of
the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Delaware Court of Chancery
or such other court shall deem proper.
Section 3. Successful Defense. To the extent that a
director, officer, employee or agent of Valmont has been
successful on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, in
defense of any action, suit or proceeding referred to in Sections
1 and 2 of this Article, or in defense of any claims, issue or
matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
Section 4. Specific Authorization. Any indemnification
under Sections 1 and 2 of this Article (unless ordered by a
court) shall be made by Valmont only as authorized in the
specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in said Sections 1 and 2. Such determination
shall be made: (a) by the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to such
action, suit or proceeding; or (b) if such quorum is not
obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion; or (c) by the stockholders.
Section 5. Advance of Expenses. Expenses incurred by an
elected officer or director in defending a civil or criminal
action, suit or proceeding shall be paid by Valmont in advance of
the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or
elected officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by Valmont
as authorized in this Article. Such expenses incurred by other
officers, employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
Section 6. Right of Indemnity not Exclusive. The
indemnification and advancement of expenses provided by or
granted pursuant to the Certificate of Incorporation or these
Bylaws shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
Section 7. Insurance. Valmont may purchase and maintain
insurance on behalf of any person who is or was a director,
officer, employee or agent of Valmont, or is or was serving at
the request of Valmont 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 Valmont would have the power to
indemnify him against such liability under the provisions of this
Article, Section 145 of the General Corporation Law of the State
of Delaware, or otherwise.
Section 8. Employee Benefit Plan. For purposes of this
Article, references to "other enterprises" shall include employee
benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of Valmont" shall
include any service as a director, officer, employee or agent of
Valmont which imposes duties on, or involves services by such
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be
in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner
"not opposed to the best interests of Valmont" as referred to in
this Article.
Section 9. Invalidity of any Provisions of this Article.
The invalidity or unenforceability of any provision of this
Article shall not affect the validity or enforceability of the
remaining provisions of this Article.
Section 10. Continuation of Indemnification. The
indemnification and advancement of expenses, to the extent
provided by or granted pursuant to this Article, these Bylaws, or
the Certificate of Incorporation 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. All rights to indemnification
provided by or granted pursuant to this Article, these Bylaws, or
the Certificate of Incorporation shall be deemed to be a contract
between Valmont and each director, officer, employee or agent of
Valmont who serves or served in such capacity at any time while
this Article IV is in effect. Any repeal or modification of this
Article IV shall not in any way diminish any rights or
indemnification of such director, officer, employee or agent, or
the obligations of Valmont arising hereunder.
ARTICLE V
CONTRACTS, LOANS, CHECKS AND DEPOSITS
Section 1. Contracts. The Board of Directors may authorize
any officer or officers, agent or agents, to enter into any
contract or execute and deliver any instrument in the name of and
on behalf of the Corporation, and such authority may be general
or confined to specific instances.
Section 2. Loans. No loans shall be contracted on behalf
of the Corporation and no evidences of indebtedness shall be
issued in its name unless authorized by a resolution of the Board
of Directors. Such authority may be general or confined to
specific instances.
Section 3. Checks, Drafts, Etc. All checks, drafts or
other orders for the payment of money, notes or other evidences
of indebtedness issued in the name of the Corporation, shall be
signed by such officer or officers, agent or agents of the
Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
Section 4. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the
credit of the Corporation in such banks, trust companies or other
depositories as the Board of Directors may select.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares. Certificates
representing shares of the Corporation shall be in such form as
shall be determined by the Board of Directors. Such
certificates shall be signed by the President or a Vice President
and by the Secretary or an Assistant Secretary. All certificates
for shares shall be consecutively numbered or otherwise
identified. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares
and date of issue, shall be entered on the stock transfer books
of the Corporation. All certificates surrendered to the
Corporation for transfer shall be canceled and no new
certificates shall be issued until the former certificate for a
like number of shares shall have been surrendered and canceled,
except that in the case of a lost, destroyed or mutilated
certificate, a new one may be issued therefor upon such terms and
indemnity to the Corporation as the Board of Directors may
prescribe.
Section 2. Transfer of Shares. Transfer of shares of the
Corporation shall be made only on the stock transfer books of the
Corporation by the holder of record thereof or by his legal
representative, who shall furnish proper evidence of authority to
transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the
Corporation, and on surrender for cancellation of the certificate
for such shares. The person in whose name shares stand on the
books of the Corporation shall be deemed by the Corporation to be
the owner thereof for all purposes.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall end on the last
Saturday of December in each year.
ARTICLE VIII
DIVIDENDS
The Board of Directors may, from time to time, declare and
the Corporation may pay dividends on its outstanding shares in
the manner and upon the terms and conditions provided by law and
its Certificate of Incorporation.
ARTICLE IX
SEAL
The Board of Directors shall provide a corporate seal which
shall be circular in form and shall have inscribed thereon the
name of the Corporation and the state of incorporation and the
words, "Corporate Seal."
ARTICLE X
WAIVER OF NOTICE
Whenever any notice is required to be given to any
shareholder or directors of the Corporation under the provisions
of these Bylaws or under the provisions of the Certificate of
Incorporation or under the provisions of the General Corporation
Law of the State of Delaware, a waiver thereof in writing, signed
by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to
the giving of such notice.
ARTICLE XI
AMENDMENTS
These Bylaws may be altered, amended or repealed and new
Bylaws may be adopted by the Board of Directors at any regular or
special meeting of the Board of Directors.
I HEREBY CERTIFY that the foregoing is a true and correct
restatement of the Bylaws of VALMONT INDUSTRIES, INC., as amended
on June 26, 1995.
By /s/Thomas P. Egan, Jr.
___________________________________
Thomas P. Egan, Jr.
Secretary