BYLAWS
OF
VALMONT INDUSTRIES, INC.
RESTATED AS OF OCTOBER 28, 1996
ARTICLE I
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 60 nor more
than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that
in the event the date of the annual meeting is advanced by
more than 20 days, or delayed by more than 60 days, from
such anniversary date, notice by the stockholder to be
timely must be so delivered or mailed and received not
earlier than the 90th day prior to such annual meeting and
not later than the close of business on the later of the
60th day prior to such annual meeting or the tenth day
following the date on which public announcement of the
date of such meeting is first 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 the
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 60 nor more
than 90 days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that
in the event the date of the annual meeting is advanced by
more than 20 days, or delayed by more than 60 days, from
such anniversary date, notice by the shareholder to be
timely must be so delivered or mailed and received not
earlier than the 90th day prior to such annual meeting and
not later than the close of business on the later of the
60th day prior to such annual meeting or the tenth day
following the date on which public announcement of the
date of such meeting is first 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 therefore.
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 directors 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
CONNTRACTS, 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.