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
February 17, 1996
May 17, 1996
February 14, 1997
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 and Business Unit 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 Chairman of the Board..........................9
Section 3.4 Chief Executive Officer.......................10
Section 3.5 Chief Operating Officer.......................10
Section 3.6 President.....................................10
Section 3.7 Chief Administrative Officer..................10
Section 3.8 Vice Presidents...............................11
Section 3.9 General Counsel...............................11
Section 3.10 Secretary.....................................11
Section 3.11 Treasurer.....................................11
Section 3.12 Controller....................................11
Section 3.13 Other Officers................................12
Section 3.14 Voting Corporation's Securities...............12
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........15
ARTICLE VI Miscellaneous
Section 6.1 Fiscal Year...................................16
Section 6.2 Corporate Seal................................16
Section 6.3 Delegation of Authority.......................16
Section 6.4 Notices.......................................16
ARTICLE VII By-Laws and Their Amendments..................................16
ARTICLE VIII National Emergency............................................17
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 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.
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.
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. However, effective at 9:30 a.m.,
Central Daylight Time on May 16, 1997, the Board of Directors shall
consist of 10 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, however, 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 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 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 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
protesting 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 directors 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.
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 holds a group office may also hold a
corporate office or a division office, or both.
(c) Division and Business Unit Officers. The chief executive
officer of the corporation may appoint such officers of any division
or business unit of the corporation as he may deem proper, except that
division and business unit chairmen and presidents may be appointed only
by the Board of Directors. A division or business unit officer shall not
be an officer of the corporation, and shall serve as an officer only of
the division or business unit to which appointed, but a person who holds
a division or business unit 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 perform
such other duties as may be assigned to him by the Board of Directors.
SECTION 3.4. Chief Executive Officer
The Chief Executive Officer 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
Chief Executive Officer shall be 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.
SECTION 3.5. Chief Operating Officer
The Chief Operating Officer 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
Chief Operating Officer shall, subject to the authority and direction of the
Chief Executive Officer, 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 Chief Executive Officer with respect
to the operating affairs of the corporation.
SECTION 3.6. 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 perform such other duties as may be delegated to him by the
Board of Directors or the Chief Executive Officer.
SECTION 3.7. Chief Administrative Officer
The Chief Administrative Officer shall be the chief administrative
officer of the corporation and shall supervise and manage the administrative
affairs of the corporation. He shall supervise and direct those officers and
agents of the corporation who are engaged in the administrative affairs of the
corporation. He shall perform such functions for the corporation as may be
designated by the chief executive officer or the chief operating officer, and
shall carry into effect the resolutions of the Board of Directors and the
orders of the chief executive officer or the chief operating officer with
respect to such functions.
SECTION 3.8. 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 3.9. 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.
SECTION 3.10. 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 3.11. 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 3.12. 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 3.13. 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 3.14. 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 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
circumstances 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 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.
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 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 reason- able 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 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.
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 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.