BY - LAWS
VULCAN MATERIALS COMPANY
(Incorporated under the laws of the State of New Jersey)
Restated: February 2, 1990
Amended: June 27, 1990
March 27, 1991
February 5, 1992
(eff. 5/11/92)
May 11, 1992
December 8, 1992
February 12, 1993
March 5, 1995
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I N D E X
Page
ARTICLE I Shareholders' Meetings
Section 1.1 Annual Meetings 1
Section 1.2 Special Meetings 1
Section 1.3 Notice and Purpose of Meetings 1
Section 1.4 Quorum and Adjournments 1
Section 1.5 Organization 2
Section 1.6 Voting 2
Section 1.7 Selection of Inspectors 3
Section 1.8 Duties of Inspectors 3
ARTICLE II Directors
Section 2.1 Number, Qualification, Tenure, Term,
Quorum, Vacancies, Removal
(a) Number, Qualification and Tenure 4
(b) Term 4
(c) Quorum 5
Section 2.2 Meetings of the Board of Directors 5
Section 2.3 Committees of the Board of Directors 6
Section 2.4 Participation in Meetings by Means of
Conference Telephone or Similar
Instrument 7
Section 2.5 Action of Board of Directors and
Committees Without a Meeting 7
Section 2.6 Dividends 7
Section 2.7 Conflict of Interest 8
ARTICLE III Officers
Section 3.1 (a) Corporate Officers 8
(b) Group Officers 8
(c) Division Officers 9
Section 3.2 (a) Term and Removal of Officers
of the Corporation 9
(b) Term and Removal of Group
and Division Officers 9
Section 3.3 (a) Chairman of the Board 9
(b) Vice Chairman 10
Section 3.4 President 10
Section 3.5 Vice Presidents 10
Section 3.6 General Counsel 10
Section 3.7 Secretary 11
Section 3.8 Treasurer 11
Section 3.9 Controller 11
Section 3.10 Other Officers 11
Section 3.11 Voting Corporation's Securities 11
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ARTICLE IV Indemnification of Directors, Officers
and Employees 12
ARTICLE V Certificates of Stock
Section 5.1 Transfer of Shares 14
Section 5.2 Transfer Agent and Registrar 14
Section 5.3 Fixing Record Date 14
Section 5.4 Lost, Stolen or Destroyed Certificates 14
ARTICLE VI Miscellaneous
Section 6.1 Fiscal Year 15
Section 6.2 Corporate Seal 15
Section 6.3 Delegation of Authority 15
Section 6.4 Notices 15
ARTICLE VII By-Laws and Their Amendments 16
ARTICLE VIII National Emergency 16
(ii)
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ARTICLE I
Shareholders' Meetings
SECTION 1.1. Annual Meetings
(a) The annual meeting of the shareholders of the corporation
may be held at such place within or without the State of New Jersey
as may be fixed by the Board of Directors, at 10 a.m., local time, or
at such other hour as may be fixed by the Board of Directors, on
such day in April or May of each year as may be fixed by the Board
of Directors, for the purpose of electing directors and for the
transaction of such other business as may properly be brought before
the meeting.
(b) If the annual meeting for the election of directors is not
held in one of the months set forth in Section 1.1(a), the Board of
Directors shall cause the meeting to be held as soon thereafter as
convenient.
SECTION 1.2. Special Meetings
(a) Special meetings of the shareholders may be called by the
Board of Directors, the chairman of the Board of Directors or the
chief executive officer.
(b) Special meetings shall be held at such time and date and
at such place as shall have been fixed by the Board of Directors, the
chairman of the Board of Directors or by the chief executive officer.
SECTION 1.3. Notice and Purpose of Meetings
Written notice of the time, place and purpose or purposes of every
meeting of shareholders shall be given, not less than ten nor more than 60
days before the meeting, either personally or by mail, to each shareholder
of record entitled to vote at the meeting.
SECTION 1.4. Quorum and Adjournments
(a) A quorum at all meetings of shareholders shall consist of
the holders of record of a majority of the shares of the issued and
outstanding capital stock of the corporation, entitled to vote thereat,
present in person or by proxy, except as otherwise provided by law
or the Certificate of Incorporation.
(b) A shareholders' meeting may be adjourned to another time
or place, and, if no new record date is fixed, it shall not be
necessary to give notice of the adjourned meeting if the time and
place to which the meeting is adjourned are
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announced at the meeting at which the adjournment is taken, and at the
adjourned meeting only such business is transacted as might have been
transacted at the original meeting. If after the adjournment a new
record date is fixed by the Board of Directors, notice of the
adjourned meeting shall be given to shareholders of record on the new
record date entitled to vote. Less than a quorum may adjourn the
meeting as herein provided.
SECTION 1.5. Organization
Meetings of the shareholders shall be presided over by the chief
executive officer, or, if he is not present, by a chairman to be chosen by a
majority of the shareholders entitled to vote who are present in person or by
proxy at the meeting. The Secretary of the corporation, or, in his or her
absence, an Assistant Secretary, shall act as secretary of every meeting, but
if neither the Secretary nor an Assistant Secretary is present, the meeting
shall choose any person present to act as secretary of the meeting.
SECTION 1.6. Voting
(a) At all meetings of the shareholders the voting need not be
by ballot, except that all elections for directors shall be by ballot,
and except that the voting shall be by ballot on all other matters
upon which voting by ballot is expressly required by the Certificate
of Incorporation or by the laws of the State of New Jersey.
(b) The poll at all elections of directors shall be open in
accordance with the laws of the State of New Jersey.
(c) Subject to the foregoing provisions, the right
of any shareholder to vote at a meeting of shareholders shall be
determined on the basis of the number of shares registered in his or
her name on the date fixed as the record date for said meeting.
(d) Except as otherwise provided by statute or these By-laws,
any matter submitted to a vote of shareholders shall be viva voce
unless the person presiding at the meeting determines that the
voting shall be by ballot or unless the circumstances are such that
the will of the holders of a majority of shares entitled to vote cannot
be determined with certainty and the holder of a share entitled to
vote or his or her proxy shall demand a vote by ballot. In either of
such events a vote by ballot shall be taken.
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SECTION 1.7. Selection of Inspectors
(a) The Board of Directors may in advance of any
shareholders' meeting or any proposed shareholder action without
a meeting appoint one or more inspectors to act at the meeting or
any adjournment thereof or to receive consents of shareholders. If
inspectors are not so appointed for a shareholders' meeting or shall
fail to qualify, the person presiding at the shareholders' meeting
may, and upon the request of any shareholder entitled to vote
thereat shall, make such appointment.
(b) In case any person appointed as inspector fails to appear
or act, the vacancy may be filled by appointment made by the Board
of Directors in advance of the meeting or at the meeting by the
person presiding.
(c) Each inspector, before entering upon the discharge of his
or her duties, shall take and sign an oath faithfully to execute the
duties of inspector at such meeting or in tabulating consents with
strict impartiality and according to the best of his or her ability.
(d) No person shall be elected a director in an election for
which he has served as an inspector.
SECTION 1.8. Duties of Inspectors
The inspectors shall determine the number of shares outstanding and the
voting power of each, the shares represented at the meeting or the shares
entitled to consent, the existence of a quorum, the validity and effect of
proxies, and shall receive votes or consents, hear and determine all
challenges and questions arising in connection with the right to vote, count
and tabulate all votes or consents, determine the result, and do such acts as
are proper to conduct the election or vote or consents with fairness to all
shareholders. If there are three or more inspectors, the act of a majority
shall govern. On request of the person presiding at the meeting or any
shareholder entitled to vote thereat or of any officer, the inspectors shall
make a report in writing of any challenge, question or matter determined by
them. Any report made by them shall be prima facie evidence of the facts
therein stated, and such report shall be filed with the minutes of the
meeting.
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ARTICLE II
Directors
SECTION 2.1. Number, Qualification, Tenure, Term, Quorum,
Vacancies, Removal
(a) Number, Qualification and Tenure. The business and
affairs of the corporation shall be managed by or under the direction
of its Board of Directors, consisting of 11 persons. The number
may, from time to time, be increased or decreased by resolution
adopted by a majority of the entire Board of Directors, but the
number shall not be less than nine nor more than 21. Any
directorship to be filled by reason of an increase in the number of
directors may be filled by the affirmative vote of two-thirds of the
directors in office at the time. Directors shall be at least 25 years
of age and need not be United States citizens or residents of New
Jersey or shareholders of the corporation.
Any outside director shall retire from the Board of Directors at
the annual meeting next following their 70th birthday, regardless of
the term for which they might have been elected; provided, howeer,
that current outside directors who continue to serve until the annual
meeting next following their 68th birthday shall have the option to
retire then. Any outside director who ceases to hold the position
with the business or professional organization with which such
person was associated when most recently elected a director shall
automatically be deemed to have offered his or her resignation as
a director of the corporation, and the Director and Management
Succession Committee shall make a recommendation to the Board
of Directors with respect to such resignation; and, if the deemed
offer to resign is accepted by the Board of Directors, such
resignation shall be effective as of the next annual meeting of
shareholders.
Any inside director shall retire from the Board of Directors at
the annual meeting next following his or her 65th birthday; provided,
however, that any inside director who has served as chief executive
officer of the corporation and who has been requested by the Board
of Directors to do so shall serve until the next annual meeting
following his or her 67th birthday, but not thereafter.
An inside director is one who is or has been in the full-time
employment of the corporation, and an outside director is any other
director.
(b) Term. Directors shall be divided into three classes, with
the term of office of one class expiring each year. Except as
otherwise provided in the Certificate of Incorporation or these
By-laws, directors shall be chosen at annual
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meetings of the shareholders, and each director shall be chosen to
serve until the third succeeding annual meeting of shareholders
following his or her election and until his or her successor shall
have been elected and qualified.
(c) Quorum. A majority of the members of the Board of
Directors then acting, but, in no event less than one-third of the
entire Board of Directors, acting at a meeting duly assembled, shall
constitute a quorum for the transaction of business. Directors
having a personal or conflicting interest in any matter to be acted
upon may be counted in determining the presence of a quorum. If
at any meeting of the Board of Directors there shall be less than a
quorum present, a majority of those present may adjourn the
meeting, without further notice, from time to time until a quorum
shall have been obtained.
SECTION 2.2. Meetings of the Board of Directors
(a) Meetings of the Board of Directors shall be held at such
place within or without the State of New Jersey and at such time
and date as may from time to time be fixed by the Board of
Directors, or, if not so fixed, as may be specified in the notice
of the meeting. A meeting of the Board of Directors shall be held
without notice immediately after the annual meeting of the shareholders.
(b) Regular meetings of the Board of Directors shall be held
on such day of such months as may be fixed by the Board of
Directors. At any regular meeting of the Board of Directors any
business that comes before such meeting may be transacted except
where special notice is required by these By-laws.
(c) Special meetings of the Board of Directors may be held on
the call of the chairman of the Board of Directors, the chief
executive officer or any three directors.
(d) Notice of each regular meeting of the Board of Directors,
other than the meeting following the annual meeting of shareholders,
shall be given not less than seven days before the date on which such
regular meeting is to be held. Notice of each special meeting of the
Board of Directors shall be given to each member of the Board of
Directors not less than two days before the date upon which such meeting
is held. Notice of any such meeting may be given by mail, telegraph,
telephone, telex, facsimile transmission, personal service or by
personally advising the director orally. Notice of a meeting of the
Board of Directors may be waived in writing before or after the meeting.
Meetings may be held at any time without notice if all the directors are
present. Notice of special meetings of the Board of Directors shall
specify the purpose or purposes of the meeting. Neither the business to
be transacted nor the purpose or purposes of any meeting of the Board of
Directors need be specified in the notice of
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regular meetings or in the waiver of notice of any regular or special
meeting of the Board of Directors.
(e) Notice of an adjourned meeting of the Board of Directors
need not be given if the time and place are fixed at the meeting
adjourning and if the period of adjournment does not exceed ten
days in any one adjournment.
SECTION 2.3. Committees of the Board of Directors
(a) The Board of Directors, by resolution adopted by a
majority of the entire Board of Directors, may appoint from among
its members an Executive Committee and one or more other
committees, each of which shall have at least three members. To
the extent provided in such resolution each such committee shall
have and may exercise all the authority of the Board of Directors,
except as expressly limited by the New Jersey Business Corporation
Act.
(b) The Board of Directors, by resolution adopted by a
majority of the entire Board of Directors, may: (1) fill any vacancy
in any such committee; (2) appoint one or more directors to serve
as additional members of any such committee; (3) appoint one or
more directors to serve as alternate members of any such
committee, to act in the absence or disability of members of any
such committee with all the powers of such absent or disabled
members; (4) abolish any such committee at its pleasure; and (5)
remove any director from membership on such committee at any
time, with or without cause.
(c) The Executive Committee shall meet at such time or times,
and at such place within or outside the State of New Jersey, as it
shall designate or, in the absence of such designation, as shall be
designated by the person or persons calling the meeting; and it shall
make its own rules of procedure. Meetings may be held at any time
without notice if all members of the Executive Committee are
present, or if at any time before or after the meeting those not
present waive notice of the meeting in writing. A majority of the
members of the Executive Committee shall constitute a quorum
thereof, but at any meeting of the Committee at which all the
members are not present no action shall be taken except by the
unanimous vote of those present.
(d) Meetings of any committee may be called by the chairman
of the Board of Directors, the chief executive officer, the chairman
of the committee, by any two members of the committee or as
provided in the resolution appointing the committee. Notice of such
meeting shall be given to each member of the committee by mail,
telegraph, telephone, telex, facsimile transmission, personal service
or by personally advising the member orally. Said notice shall state the
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time and place of any meeting of any such committee and shall be fixed
by the person or persons calling the meeting.
(e) Actions taken at a meeting of any committee shall be
reported to the Board of Directors at its next meeting following such
committee meeting; except that, when the meeting of the Board of
Directors is held within two days after the committee meeting, such
report shall, if not made at the first meeting, be made to the Board
of Directors at its second meeting following such committee
meeting.
SECTION 2.4. Participation in Meetings by Means of Conference
Telephone or Similar Instrument
Where appropriate communication facilities are available, any or all
directors may participate in all or any part of a meeting of the Board of
Directors or in a meeting of any committee of the Board of Directors by means of
a conference telephone or any means of communication by which the persons
participating in the meeting are able to hear each other as though he was or
they were present in person at such meeting. Such participation without
propesting prior to the conclusion of such participation the lack of notice of
such meeting shall constitute a waiver of notice by such participating director
or directs with respect to business transacted during such participation.
SECTION 2.5. Action of Board of Directors and Committees
Without a Meeting
Any action required or permitted to be taken pursuant to authorization
voted at a meeting of the Board of Directors or any committee of the Board of
Directors may be taken without a meeting if, prior or subsequent to such
action, all members of the Board of Directors or of such committee, as the
case may be, consent thereto in writing and such written consents are filed
with the minutes of the proceedings of the Board of Directors or committee.
SECTION 2.6. Dividends
Subject to the provisions of the laws of the State of New Jersey and the
Certificate of Incorporation, the Board of Directors shall have full power to
determine whether any and, if any, what part of any funds of the corporation
shall be declared in dividends and paid to shareholders; the division of the
whole or any part of such funds of the corporation shall rest wholly within
the lawful discretion of the Board of Directors, and it shall not be required
at any time, against such discretion, to divide or pay any part of such funds
among or to the shareholders as dividends or otherwise, and the Board of
Directors may fix a sum which may be set aside or reserved over and above the
capital paid in of the corporation as working capital for the corporation or
as a reserve for any proper purpose, and from time to time may increase,
diminish and vary the same in its absolute judgment and discretion.
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SECTION 2.7. Conflict of Interest
No contract or other transaction between the corporation and one or more
of its directors, or between the corporation and any domestic or foreign
corporation, firm or association of any type or kind in which one or more of
its directors are directors or are otherwise interested, shall be void or
voidable solely by reason of such common directorship or interest, or solely
because such director or directors are present at the meeting of the Board of
Directors or a committee thereof which authorizes or approves the contract or
transaction, or solely because his or their votes are counted for such
purpose, if any of the following is true: (1) the contract or other
transaction is fair and reasonable as to the corporation at the time it is
authorized, approved or ratified; or (2) the fact of the common directorship
or interest is disclosed or known to the Board of Directors or committee and
the Board of Directors or committee authorizes, approves, or ratifies the
contract by unanimous written consent, provided at least one director so
consenting is disinterested, or by the affirmative vote of a majority of the
disinterested directors, even though the disinterested directors be less than
a quorum; or (3) the fact of the common directorship or interest is disclosed
or known to the shareholders, and they authorize, approve or ratify the
contract or transaction.
The Board of Directors, by the affirmative vote of a majority of directors
in office and irrespective of any personal interest of any of them, shall have
authority to establish reasonable compensation of directors for services to the
corporation as directors, officers or otherwise.
ARTICLE III
Officers
SECTION 3.1
(a) Corporate Officers. Each year promptly after the annual
meeting of the shareholders, the Board of Directors shall elect a
Chairman of the Board, a President, one or more Vice Presidents,
with such designations, if any, as it may determine, a General
Counsel, a Secretary, a Treasurer, and a Controller, and from time
to time may elect or appoint one or more Assistants to any of such
officers, and such one or more Assistant Secretaries, Assistant
Treasurers, and Assistant Controllers, and such other officers,
agents, and employees, and with such designations, as it may deem
proper. Any two or more offices may be concurrently held by the
same person at the same time. The Chairman of the Board and the
President shall be chosen from among the directors.
(b) Group Officers. The chief executive officer of the
corporation may appoint such officers of any group of the
corporation as he may deem proper, except that group senior vice
presidents may be appointed only by the Board of Directors. A
group officer shall not be an officer of the corporation, and shall
serve as an officer only of the group to which he is appointed, but
a person who
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holds a group office may also hold a corporate office or a division
office, or both.
(c) Division Officers. The chief executive officer of the
corporation may appoint such officers of any division of the
corporation as he may deem proper, except that division chairmen
and presidents may be appointed only by the Board of Directors. A
division officer shall not be an officer of the corporation, and shall
serve as an officer only of the division to which appointed, but a
person who holds a division office may also hold a corporate office
or a group office, or both.
SECTION 3.2
(a) Term and Removal of Officers of the Corporation. The
term of office of all officers shall be one year and until their
respective successors are elected and qualify, but any officer may be
removed from office, either with or without cause, at any time, by
the affirmative vote of a majority of the members of the Board of
Directors then in office.
(b) Term and Removal of Group and Division Officers. Group
senior vice presidents and division chairmen and presidents shall
serve at the pleasure of the Board of Directors. Group senior vice
presidents and division chairmen and presidents may be removed
from office, either with or without cause, at any time, by the Board
of Directors. Other group and division officers shall serve at the
pleasure of the chief executive officer of the corporation. Any
other group or division officer may be removed from office as a
group or division officer, either with or without cause, at any time,
by the chief executive officer of the corporation.
SECTION 3.3.
(a) Chairman of the Board. The Chairman of the Board may execute
bonds, mortgages, and bills of sale, assignments, conveyances, and all other
contracts, except those required by law to be otherwise signed and executed,
or except when the signing and execution thereof when permitted by law shall
be expressly delegated by the Board of Directors to some other officer or
agent of the corporation. The Chairman of the Board shall preside at all
meetings of the Board of Directors. The Chairman of the Board shall serve as
the chief executive officer of the corporation responsible to the Board of
Directors for planning and directing the business of the corporation and for
initiating and directing those actions essential to its profitable growth and
development and shall perform such other duties as may be assigned to him by
the Board of Directors. The Chairman of the Board shall serve as an ex
officio member (nonvoting) of all committees of the Board of Directors of
which he is not otherwise a member.
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(b) Vice Chairman. The Vice Chairman may execute bonds, mortgages,
and bills of sale, assignments, conveyances, and all other contracts, except
those required by law to be otherwise signed and executed, or except when the
signing and execution thereof when permitted by law shall be expressly
delegated by the Board of Directors to some other officer or agent of the
corporation. The Vice Chairman shall advise and counsel with the Chairman of
the Board, and with other officers of the corporation on any or all activities
in which the corporation may engage, and shall perform such other duties as
may be assigned to him by the Chairman of the Board or the Board of
Directors.
SECTION 3.4. President
The President may execute bonds, mortgages, and bills of sale, assignments,
conveyances, and all other contracts, except those required by law to be
otherwise signed and executed, or except when the signing and execution
thereof when permitted by law shall be expressly delegated by the Board of
Directors to some other officer or agent of the corporation. The President
shall serve as the chief operating officer of the corporation and, subject to
the authority and direction of the Chairman of the Board, the President shall
have general and active management of the operating affairs of the corporation
and shall carry into effect the resolutions of the Board of Directors and the
orders of the Chairman of the Board with respect to the operating affairs of
the corporation.
SECTION 3.5. Vice Presidents
Each Vice President of the corporation may execute bonds, mortgages,
bills of sale, assignments, conveyances, and all other contracts, except
where required by law to be otherwise signed and executed. Each Vice
President of the corporation shall perform such functions for the corporation
as may be designated by the chief executive officer of the corporation, and
shall carry into effect the resolutions of the Board of Directors and the
orders of the chief executive officer of the corporation with respect to such
functions.
SECTION 3.6. General Counsel
The General Counsel shall be the chief legal officer of the corporation
and shall have overall responsibility for all legal affairs of the
corporation. The General Counsel shall have management responsibility for the
corporation's legal department and its relationships with outside counsel.
The General Counsel's duties shall include providing legal advice to corporate
and division officers, confirming compliance with applicable laws, overseeing
litigation, reviewing significant agreements, participating in important
negotiations, and selecting all outside counsel. He shall perform such other
functions for the corporation as may be designated by the Board of Directors
or the chief executive officer.
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SECTION 3.7. Secretary
The Secretary shall keep or cause to be kept the minutes of all meetings
of the shareholders, of the Board of Directors, of the Executive Committee,
and unless otherwise directed by the Board of Directors, the minutes of
meetings of other committees of the Board of Directors. He shall attend to
the giving or serving of all notices required to be given by law or by the
By-laws or as directed by the Board of Directors or the chief executive
officer of the corporation. He shall have custody of the seal of the
corporation and shall have authority to affix or cause the same or a facsimile
thereof to be affixed to any instrument requiring the seal and to attest the
same. He shall perform such other functions for the corporation as may be
designated by the Board of Directors or the chief executive officer of the
corporation.
SECTION 3.8. Treasurer
The Treasurer shall be responsible for safeguarding the cash and
securities of the corporation and shall keep or cause to be kept a full and
accurate account of the receipts and disbursements of the corporation. He
shall perform such other functions for the corporation as may be designated by
the Board of Directors or the chief executive officer of the corporation.
SECTION 3.9. Controller
The Controller shall be the principal accounting officer of the
corporation, shall have supervision over the accounting records of the
corporation and shall be responsible for the preparation of financial
statements. He shall perform such other functions for the corporation as may
be designated by the Board of Directors or by the chief executive officer of
the corporation.
SECTION 3.10. Other Officers
The other officers of the corporation shall have such powers and duties
as generally pertain to their respective offices as well as such powers and
duties as from time to time may be designated by the Board of Directors or by
the chief executive officer of the corporation.
SECTION 3.11. Voting Corporation's Securities
Unless otherwise ordered by the Board of Directors, the chief executive
officer or his or her delegate, or, in the event of his or her inability to
act, such other officer as may be designated by the Board of Directors to act
in the absence of the chief executive officer shall have full power and
authority on behalf of the corporation to attend and to act and to vote, and
to execute a proxy or proxies empowering others to attend and to act and to
vote, at any meetings of security holders of the corporations in which the
corporation may hold securities, and at such meetings the chief executive
officer or such other officer of the corporation, or such proxy, shall possess
and may exercise any and all rights and powers incident to the ownership
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of such securities, and which as the owner thereof the corporation might have
possessed and exercised, if present. The Secretary or any Assistant Secretary
may affix the corporate seal to any such proxy or proxies so executed by the
chief executive officer or such other officer and attest the same. The Board
of Directors by resolution from time to time may confer like powers upon any
other person or persons.
ARTICLE IV
Indemnification of Directors, Officers and Employees
(a) Subject to the provisions of this Article IV, the
corporation shall indemnify the following persons to the fullest
extent permitted and in the manner provided by and the circum-
stances described in the laws of the State of New Jersey, including
Section 14A:3-5 of the New Jersey Business Corporation Act and
any amendments thereof or supplements thereto: (i) any person
who is or was a director, officer, employee or agent of the
corporation; (ii) any person who is or was a director, officer,
employee or agent of any constituent corporation absorbed by the
corporation in a consolidation or merger, but only to the extent that
(a) the constituent corporation was obligated to indemnify such
person at the effective date of the merger or consolidation or (b) the
claim or potential claim of such person for indemnification was
disclosed to the corporation and the operative merger or
consolidation documents contain an express agreement by the
corporation to pay the same; (iii) any person who is or was serving
at the request of the corporation as a director, officer, trustee,
fiduciary, employee or agent of any other domestic or foreign
corporation, or any partnership, joint venture, sole proprietorship,
trust, employee benefit plan or other enterprise, whether or not for
profit; and (iv) the legal representative of any of the foregoing
persons (collectively, a "Corporate Agent").
(b) Anything herein to the contrary notwithstanding, the
corporation shall not be obligated under this Article IV to provide
indemnification (i) to any bank, trust company, insurance company,
partnership or other entity, or any director, officer, employee or
agent thereof or (ii) to any other person who is not a director,
officer or employee of the corporation, in respect of any service by
such person or entity, whether at the request of the corporation or
by agreement therewith, as investment advisor, actuary, custodian,
trustee, fiduciary or consultant to any employee benefit plan.
(c) To the extent that any right of indemnification granted
hereunder requires any determination that a Corporate Agent shall
have been successful on the merits or otherwise in any Proceeding
(as hereinafter defined) or in defense of any claim, issue or matter
therein, the Corporate Agent shall be deemed to
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have been "successful" if, without any settlement having been made by the
Corporate Agent, (i) such Proceeding shall have been dismissed or
otherwise terminated or abandoned without any judgment or order having
been entered against the Corporate Agent, (ii) such claim, issue or other
matter therein shall have been dismissed or otherwise eliminated or
abandoned as against the Corporate Agent, or (iii) with respect to any
threatened Proceeding, the Proceeding shall have been abandoned or there
shall have been a failure for any reason to institute the Proceeding
within a reasonable time after the same shall have been threatened or
after any inquiry or investigation that could have led to any such
Proceeding shall have been commenced. The Board of Directors or any
authorized committee thereof shall have the right to determine what
constitutes a "reasonable time" or an "abandonment" for purposes of this
paragraph (c), and any such determination shall be conclusive and final.
(d) To the extent that any right of indemnification granted
hereunder shall require any determination that the Corporate Agent
has been involved in a Proceeding by reason of his or her being or
having been a Corporate Agent, the Corporate Agent shall be
deemed to have been so involved if the Proceeding involves action
allegedly taken by the Corporate Agent for the benefit of the
corporation or in the performance of his or her duties or the course
of his or her employment for the corporation.
(e) If a Corporate Agent shall be a party defendant in a
Proceeding, other than a Proceeding by or in the right of the
corporation, and the Board of Directors or a duly authorized
committee of disinterested directors shall determine that it is in the
best interests of the corporation for the corporation to assume the
defense of any such Proceeding, the Board of Directors or such
committee may authorize and direct that the corporation assume the
defense of the Proceeding and pay all expenses in connection
therewith without requiring such Corporate Agent to undertake to
pay or repay any part thereof. Such assumption shall not affect the
right of any such Corporate Agent to employ his or her own counsel
or to recover indemnification under this By-law to the extent that he
may be entitled thereto.
(f) As used herein, the term "Proceeding" shall mean and
include any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, and any
appeal therein and any inquiry or investigation which could lead to
such action, suit or proceeding.
(g) The right to indemnification granted under this Article
IV shall not be exclusive of any other rights to which any Corporate
Agent seeking indemnification hereunder may be entitled.
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ARTICLE V
Certificates of Stock
SECTION 5.1. Transfer of Shares
Stock of the corporation shall be transferable in accordance with the
provisions of Chapter 8 of the Uniform Commercial Code as adopted in New
Jersey (N.J.S. 12A:8-101, et seq.) as amended from time to time, except as
otherwise provided in the New Jersey Business Corporation Act.
SECTION 5.2. Transfer Agent and Registrar
The Board of Directors may appoint one or more transfer agents and one
or more registrars of transfers and may require all stock certificates to bear
the signatures of such transfer agent and registrar, one of which signatures
may be a facsimile.
SECTION 5.3. Fixing Record Date
For the purpose of determining the shareholders entitled to notice of or
to vote at any meeting of shareholders or any adjournment thereof, or to
express consent to or dissent from any proposal without a meeting, or for the
purpose of determining shareholders entitled to receive payment of any
dividend or allotment of any right, or for the purpose of any other action,
the Board of Directors may fix, in advance, a date as the record date for any
such determination of shareholders. Such date shall not be more than 60 nor
less than ten days before the date of such meeting, nor more than 60 days
prior to any other action.
SECTION 5.4. Lost, Stolen or Destroyed Certificates
(a) Where a certificate for shares has been lost, apparently
destroyed, or wrongfully taken and the owner thereof fails to so
notify the corporation or the transfer agent of that fact within a
reasonable time after he has notice of it and the transfer agent or
the corporation registers a transfer of the shares before receiving
such a notification, the owner shall be precluded from asserting
against the corporation any claim for registering the transfer of such
shares or any claim to a new certificate.
(b) Subject to the foregoing, where the owner of shares claims
that the certificate representing shares has been lost, destroyed or
wrongfully taken, the corporation shall issue a new certificate in
place of the original certificate if the owner thereof requests the
issue of a new certificate before the corporation has notice that the
certificate has been acquired by a bona fide purchaser, makes proof
in affidavit form, satisfactory to the Secretary or Assistant Secretary
of the corporation and to its transfer agent, of his or her ownership
of the shares
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represented by the certificate and that the certificate has been lost,
destroyed or wrongfully taken; files an indemnity bond for an open or
unspecified amount or if authorized in a specific case by the
corporation, for such fixed amount as the chief executive officer, or a
Vice President, or the Secretary of the corporation may specify, in such
form and with such surety as may be approved by the transfer agent and
the Secretary or Assistant Secretary of the corporation, indemnifying the
corporation and the transfer agent and registrar of the corporation
against all loss, cost and damage which may arise from issuance of a new
certificate in place of the original certificate; and satisfies any other
reasonable requirements imposed by the corporation or transfer agent. In
case of the surrender of the original certificate, in lieu of which a new
certificate has been issued, or the surrender of such new certificate,
for cancellation, the bond of indemnity given as a condition of the
issuance of such new certificate may be surrendered.
ARTICLE VI
Miscellaneous
SECTION 6.l. Fiscal Year
The fiscal year of the corporation shall begin on the first day of
January in each year and shall end on the 31st day of December next following,
unless otherwise determined by the Board of Directors.
SECTION 6.2. Corporate Seal
The corporate seal of the corporation shall have inscribed thereon the
name of the corporation, the year 1956 and the words "Corporate Seal, New
Jersey."
SECTION 6.3. Delegation of Authority
Any provision of these By-laws granting authority to the Board of
Directors shall not be construed as indicating that such authority may not be
delegated by the Board of Directors to a committee to the extent authorized by
the New Jersey Business Corporation Act and these By-laws.
SECTION 6.4 Notices
In computing the period of time for the giving of any notice required or
permitted for any purpose, the day on which the notice is given shall be
excluded and the day on which the matter noticed is to occur shall be
included. If notice is given by mail, telegraph, telex or
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facsimile transmission, the notice shall be deemed to be given when deposited
in the mail, delivered to the telegraph or telex office or transmitted via
facsimile transmitter, addressed to the person to whom it is directed at his
or her last address as it appears on the records of the corporation, with
postage or charges prepaid thereon; provided, however, that notice must be
given by telegraph, telephone, telex, facsimile transmission, personal service
or by personally advising the person orally when, as authorized in these
By-laws, less than three days' notice is given. Notice to a shareholder shall
be addressed to the address of such shareholder as it appears on the stock
transfer records of the corporation.
ARTICLE VII
By-Laws and Their Amendments
Subject to the rights, if any, of the holders of any series of Preference
Stock then outstanding, the By-laws of the corporation shall be subject to
alteration, amendment or repeal, and new By-laws not inconsistent with any
provisions of the Certificate of Incorporation and not inconsistent with the
laws of the State of New Jersey may be made, either by the affirmative vote of
a majority of the votes cast at any annual or special meeting of shareholders
by the holders of shares entitled to vote thereon, or, except with respect to
By-laws adopted by the shareholders of the corporation which by their terms
may not be altered, amended or repealed by the Board of Directors, by the
affirmative vote of a majority of the whole Board of Directors at any regular
or special meeting of the Board of Directors, provided that notice of the
proposal so to make, alter, amend or repeal such By-laws be included in the
notice of such meeting of the shareholders or of the Board of Directors, as
the case may be.
ARTICLE VIII
National Emergency
For the purpose of this Article VIII a national emergency is hereby
defined as any period following an enemy attack on the continental United
States of America or any nuclear or atomic disaster as a result of which and
during the period that communication or the means of travel among states in
which the corporation's plants or offices are disrupted or made uncertain or
unsafe. Persons not directors of the corporation may conclusively rely upon
a determination by the Board of Directors of the corporation, at a meeting
held or purporting to be held pursuant to this Article VIII that a national
emergency as hereinabove defined exists regardless of the correctness of such
determination. During the existence of a national emergency under the
foregoing provisions of this Article VIII the following provisions shall
become operative but no other provisions of these By-laws shall become
inoperative in such event unless directly in conflict with this Article VIII
or action taken pursuant hereto:
(a) When it is determined in good faith by any director that a
national emergency exists, special meetings of the Board of
Directors may be called by such director and at any such special
meeting two directors shall constitute a quorum for the transaction
of business including without limiting the generality
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hereof the filling of vacancies among directors and officers of the
corporation and the election of additional officers. The act of a
majority of the directors present thereat shall be the act of the Board
of Directors. If at any such special meeting of the Board of Directors
there shall be only one director present such director present may
adjourn the meeting from time to time until a quorum is obtained, and no
further notice thereof need be given of any such adjournment. The
director calling any such special meeting shall make a reasonable effort
to notify all other directors of the time and place of such special
meeting, and such effort shall be deemed to constitute the giving of
reasonable notice of such special meeting and every director shall be
deemed to have waived any requirement, of law or otherwise, that any
other notice of such special meeting be given. The directors present at
any such special meeting shall make reasonable effort to notify all
absent directors of any action taken thereat, but failure to give such
notice shall not affect the validity of the action taken at any such
meeting. Any action taken at any such special meeting may be
conclusively relied upon by all directors, officers, employees, and
agents of, and all persons dealing with, the corporation.
(b) The Board of Directors shall have the power to alter,
amend, or repeal any Articles of these By-laws by the affirmative
vote of at least two-thirds of the directors present at any special
meeting attended by two or more directors and held in the manner
prescribed in paragraph (a) of this Article, if it is determined in
good faith by said two-thirds that such alteration, amendment or
repeal would be conducive to the proper direction of the
corporation's affairs.
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