BY-LAWS
OF
USG CORPORATION
(Delaware)
As of March 27, 1998
BY-LAWS
OF
USG CORPORATION
ARTICLE I
OFFICES
The principal office of the corporation in the State of Delaware shall
be in the City of Wilmington, County of New Castle. The corporation may have
such other offices, either within or without the State of Delaware, as the
business of the corporation may require from time to time.
ARTICLE II
STOCKHOLDERS
Annual Meeting
Section 1. The date and time of the annual meetings of stockholders
shall be determined by or under the authority of the board of directors as
permitted by law for the purpose of electing directors and the transaction of
such other business as may properly come before the meeting. If the election of
directors shall not be held on the date designated for any such annual meeting
or at any adjournment thereof, the board of directors shall cause the election
to be held at a special meeting of the stockholders as soon thereafter as
conveniently may be.
Special Meetings
Section 2. Special meetings of the stockholders may be called at any
time by the chief executive officer of the corporation or by the corporate
secretary upon a request in writing of a majority of the board of directors.
Such request shall state the purpose or purposes of the proposed meeting.
Place of Meetings
Section 3. All meetings of the stockholders for the election of
directors shall be held in the City of Chicago, State of Illinois, or at such
other place as may be fixed from time to time by the board of directors.
Meetings of stockholders for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Notice of Meetings
Section 4. Written notice stating the place, day and hour of the
meeting, and in the case of a special meeting the purpose or purposes for which
the meeting is called, shall be given by mail to each stockholder entitled to
vote thereat not less than ten (10) days, nor more than sixty (60) days before
the date of the meeting. Such notice, when mailed, shall be deemed to be
delivered when deposited in the United States mail in a sealed envelope
addressed to the stockholder at his address as it appears on the records of the
corporation, with postage prepaid.
Quorum, Vote and Procedures
Section 5. (a) The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or
represented at any meeting of the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
scheduled.
(b) When a quorum is present at any meeting, the vote of the
holders of a majority of the stock having voting power present in person or
represented by proxy shall decide any question brought before such meeting,
unless the question is one upon which by express provision of the statutes or of
the certificate of incorporation, a different vote is required in which case
such express provision shall govern and control the decision of such question.
(c) The conduct of all meetings of the stockholders generally
shall be in accordance with customary rules of parliamentary procedure. Subject
to the requirements of Sections 11 and 12 of this Article II, any matter to be
presented for consideration and with a view to obtaining a vote thereon at any
such meeting shall be introduced by a motion, and any such motion shall be
seconded before such consideration may begin or before any such vote may be
obtained.
Organization of Meeting
Section 6. The chairman of the board of directors, or in his absence
the president of the corporation, or in his absence the vice chairmen of the
corporation in the chronological order of their election to that office, or in
their absence the executive vice presidents, senior vice presidents, or vice
presidents in that order and in order of their election, shall preside as
chairman of all meetings of the stockholders. In the absence of all such
persons, the meeting shall select, by majority vote, a stockholder present at
the meeting to act as chairman. The corporate secretary of the corporation, or
in his absence an assistant secretary, shall act as secretary of all meetings of
the stockholders, and in the absence of the corporate secretary or an assistant
secretary, the chairman shall appoint some other person to act as secretary of
the meeting.
Voting of Stock
Section 7. On each matter submitted to a vote at a meeting of the
stockholders, each holder of common stock shall be entitled to one vote in
person or by proxy for each share of common stock held by the stockholder. No
proxy shall be voted after three years from its date unless otherwise provided
in the proxy, and, except where the transfer books of the corporation have been
closed or a date has been fixed as a record date for the determination of its
stockholders entitled to vote, no share of stock shall be voted at any election
for directors which has been transferred on the books of the corporation within
twenty (20) days next preceding such election of directors. In all elections for
directors each stockholder shall have the right to vote, in person or by proxy,
the number of shares owned by him for as many persons as there are directors to
be elected.
Voting of Shares By Certain Holders
Section 8. (a) Each share standing in the name of another corporation,
domestic or foreign, may be voted by such officer, agent or proxy as the by-laws
of such corporation may prescribe or, in the absence of such by-law provisions,
as the board of directors of such corporation may determine.
(b) Shares standing in the name of a deceased person may be
voted by his administrator or executor either in person or by proxy. Persons
holding stock in a fiduciary capacity may vote the shares so held in person or
by proxy. Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without the transfer thereof into his name if authority so to do
be contained in an appropriate order of the court by which such receiver was
appointed. A stockholder whose shares are pledged shall be entitled to vote such
shares in person or by proxy, unless in the transfer by the pledgor on the books
of the corporation he has expressly empowered the pledgee to vote thereon, in
which case only the pledgee or his proxy may represent the stock and vote
thereon.
(c) Shares of stock of this corporation belonging to the
corporation shall not be voted, directly or indirectly, at any meeting and shall
not be counted in determining the total number of outstanding shares at any
given time, but such shares held by the corporation in a fiduciary capacity may
be voted and shall be counted in determining the total number of outstanding
shares at any given time.
Voting Lists
Section 9. The officer or agent having charge of the stock ledger for
the shares of the corporation shall prepare and make, at least ten (10) days
before each meeting of the stockholders at which directors are to be elected, a
complete list of the stockholders entitled to vote at such meeting, arranged in
alphabetical order with the address of and the number of shares registered in
the name of each stockholder. Such list shall be open to the examination of any
stockholder during ordinary business hours for a period of at least ten (10)
days prior to such meeting at the place where the meeting is to be held or at
the office of the corporation in Chicago, Illinois. Such list shall be produced
and kept at the time and place of the meeting during the whole time thereof and
shall be subject to the inspection of any stockholder who may be present. The
original stock ledger shall be prima facie evidence as to who are the
stockholders entitled to examine such stock ledger and to vote at any meeting of
the stockholders.
Closing of Transfer Books
Section 10. The board of directors may close the stock transfer books
of the corporation for a period not exceeding sixty (60) days preceding the date
of any meeting of stockholders or the date of payment of any dividend, or the
date for the allotment of rights or the date when any change or conversion or
exchange of capital stock shall go into effect, or for a period not exceeding
sixty (60) days in connection with obtaining the consent of stockholders for any
purpose. In lieu of closing the stock transfer books as aforesaid, the board of
directors may fix in advance a date, not exceeding sixty (60) days preceding the
date of any meeting of stockholders, or the date of the payment of any dividend,
or the date for the allotment of rights, or the date when any change or
conversion or exchange of capital stock shall go into effect, or a date in
connection with obtaining such consent, as a record date for the determination
of the stockholders entitled to notice of, and to vote at, any such meeting, and
any adjournment thereof, or entitled to receive payment of any such dividend, or
to any such allotment of rights, or to exercise the rights in respect of any
such change, conversion or exchange of capital stock, or to give such consent,
and in such case such stockholders and only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, such meeting and any adjournment thereof, or to receive payment
of such dividend, or to receive such allotment of rights, or to exercise such
rights, or to give such consent, as the case may be, notwithstanding any
transfer of any stock on the books of the corporation after any such record date
fixed as aforesaid.
Advance Notice of Nominations
Section 11. Subject to such rights of the holders of any class or
series of preferred stock as shall be prescribed in the Restated Certificate of
Incorporation or in the resolutions of the Board of Directors providing for the
issuance of any such class or series, only persons who are nominated in
accordance with the procedures set forth in this Section 11 shall be eligible
for election as, and to serve as, directors. Nominations of persons for election
to the Board of Directors may be made at a meeting of the stockholders at which
directors are to be elected (a) by or at the direction of the Board of Directors
or (b) by any stockholder of the Corporation entitled to vote at such meeting in
the election of directors who complies with the requirements of this Section 11.
Such nominations, other than those made by or at the direction of the Board of
Directors, shall be preceded by timely advance notice in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 60th day nor earlier than the close
of business on the 90th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. A stockholder's notice to the Secretary shall set forth (x) as to each
person whom the stockholder proposes to nominate for election or re-election as
a director, (I) the name, age, business address and residence address of such
person, (ii) the principal occupation or employment of such person, (iii) the
number of shares of each class of capital stock of the Corporation beneficially
owned by such person, and (iv) the written consent of such person to having such
person's name placed in nomination at the meeting and to serve as a director if
elected, and (y) as to the stockholder giving the notice, (I) the name and
address, as they appear on the Corporation's books, of such stockholder, and
(ii) the number of shares of each class of voting stock of the Corporation which
are then beneficially owned by the stockholder. The presiding officer of the
meeting of stockholders shall determine whether the requirements of this Section
11 have been met with respect to any nomination or intended nomination. If the
presiding officer determines that any nomination was not made in accordance with
the requirements of this Section 11, he or she shall so declare at the meeting
and the defective nomination shall be disregarded.
Advance Notice of Stockholder Proposals
Section 12. At an annual meeting of stockholders, only such business
shall be conducted, and only such proposals shall be acted upon, as shall have
been brought before the annual meeting (a) by or at the direction of the Board
of Directors or (b) by any stockholder of the Corporation who complies with the
requirements of this Section 12 and as shall otherwise be proper subjects for
stockholder action and shall be properly introduced at the meeting. For a
proposal to be properly brought before an annual meeting by a stockholder, the
stockholder must have given timely advance notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 60th day nor earlier than the close
of business on the 90th day prior to the first anniversary of the preceding
year's annual meeting; provided, however, that in the event that the date of the
annual meeting is more than 30 days before or more than 60 days after such
anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 90th day prior to such annual
meeting and not later than the close of business on the later of the 60th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made by the Corporation. In no
event shall the public announcement of an adjournment of an annual meeting
commence a new time period for the giving of a stockholder's notice as described
above. A stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (w) a description of
the proposal desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (x) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business and any other stockholders known by such stockholder to be supporting
such proposal, (y) the class and number of shares of the Corporation's stock
which are beneficially owned by the stockholder on the date of such notice and
(z) any financial interest of the stockholder in such proposal. The presiding
officer of the annual meeting shall determine whether the requirements of this
Section 12 have been met with respect to any stockholder proposal. If the
presiding officer determines that a stockholder proposal was not made in
accordance with the terms of this Section 12, he or she shall so declare at the
meeting and any such proposal shall not be acted upon at the meeting.
At a special meeting of stockholders, only such business shall be acted
upon as shall have been set forth in the notice relating to the meeting or as
shall constitute matters incident to the conduct of the meeting as the presiding
officer of the meeting shall determine to be appropriate.
ARTICLE III
DIRECTORS
General Powers
Section 1. The business and affairs of the corporation shall be managed
by a board of directors which may exercise all the powers of the corporation and
do all such lawful acts and things as are not by statute or by the certificate
of incorporation or by these by-laws directed and required to be exercised or
done by the stockholders.
Number, Classes, and Qualifications
Section 2. The number of directors which shall constitute the whole
board shall be not less than three (3) nor more than seventeen (17) and shall be
divided into three classes, as nearly equal in number as may be. Subject to the
above limits, the number and classes of directors shall be determined from time
to time by resolution of the board of directors. At each annual meeting after
the initial classification and election of directors, directors shall be elected
to fill all seats in the class whose term expires at such annual meeting and
each director so elected shall hold office for a term expiring at the third
annual meeting of stockholders after election as director and until a successor
shall be duly elected and qualified. No non-employee director shall serve as
such beyond the first annual meeting of stockholders following that director's
70th birthday nor while such person is an owner, member, or employee of or
affiliated or associated with a professional firm or enterprise providing legal,
accounting, or auditing services or advice to the corporation or any of its
subsidiaries. A non-employee director shall report to the board or any
appropriate committee thereof any significant change in such director's
principal business, occupation, or position and shall consult with the board or
any such committee concerning the possible effect of such change on continued
service as a director. No officer-director shall serve as a director beyond the
date such person ceases to be an officer. Directors need not be stockholders.
Vacancies
Section 3. Newly created directorships resulting from any increase in
the authorized number of directors and vacancies in the board of directors from
death, resignation, retirement, disqualification, removal from office or other
cause, shall be filled by a majority vote of the directors then in office, and
each director so chosen shall hold office for a term expiring at the annual
meeting of stockholders at which the term of the class to which he or she shall
have been elected expires, and until his or her successor shall be duly elected
and qualified.
Regular Meetings
Section 4. Regular meetings of the board of directors shall be held
immediately after the annual meeting of stockholders in each year and on the
second Wednesday in each of the months of February, August, and November in each
year and also on the fourth Friday in each of the months of March and September
in each year. If the day fixed for any such regular meeting shall be a legal
holiday, the meeting scheduled for that day shall be held on the next succeeding
business day which is not a legal holiday. The date and time of any such regular
meeting may be changed as the Board of Directors may from time to time determine
by resolution.
Special Meetings
Section 5. Special meetings of the board of directors may be called at
any time by the chief executive officer of the corporation, or by the corporate
secretary upon the request of not less than one-third (1/3rd) of the directors
then in office.
Place of Meetings
Section 6. All meetings of the board of directors, whether regular or
special, shall be held at the office of the corporation in Chicago, Illinois;
provided, however, that any meeting, whether regular or special, may be held at
such other place as the board of directors may from time to time determine by
resolution or as may be fixed in a notice of the meeting or as may be fixed in
any waiver of notice signed by all of the directors.
Notice of Meetings
Section 7. No notice of the holding of any regular meeting of the board
of directors is required. Written notice of any special meeting shall be given
by mail to each director not less than five (5) days before the date of the
meeting, or by telegram, cable, telephone facsimile or electronic mail not less
than two (2) days before the date of the meeting, or by telephone not less than
twenty-four (24) hours before the time of the meeting, with confirmation of
notice by telegram, cable, telephone facsimile or electronic mail, to be sent
promptly. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, in a sealed envelope addressed to the director at his
address as it appears on the records of the corporation, with postage prepaid.
If such notice is given by telegram, cable, telephone facsimile, or electronic
mail, the same shall be deemed to be delivered when delivered to any telegraph
company with charges prepaid and addressed to the director at his address as it
appears on the records of the corporation or when placed on telephone lines for
facsimile transmittal or electronic mail to the director. Attendance of any
director at any special meeting shall constitute a waiver of notice of such
meeting except where a director attends a meeting for the express purpose of
objecting to the transaction of any business on the ground that the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of any special meeting of the board of directors need be stated in
the notice or waiver of notice of such meeting.
Quorum
Section 8. A majority of the board of directors shall constitute a
quorum for the transaction of business, but if at any meeting of the board there
shall be less than a quorum present, a majority of those present may adjourn the
meeting from time to time. The affirmative vote of a majority of all directors
shall be necessary for the passage of any resolution unless a greater vote is
required in these by-laws or the certificate of incorporation.
Organization of Meeting
Section 9. At meetings of the board of directors, the chairman of the
board, or in his absence the president, or in his absence the vice chairmen of
the corporation in the chronological order of their election to that office,
shall preside as chairman of the meeting. In the absence of all of them, the
meeting shall elect a director, present at the meeting, to act as chairman. The
corporate secretary of the corporation, or in his absence an assistant
secretary, shall act as secretary of all meetings of the board of directors and,
in the absence of all such persons, the chairman of the meeting shall appoint
some other person to act as secretary of the meeting.
Compensation of Directors
Section 10. Each director not otherwise employed by the corporation or
an affiliated corporation shall be entitled to be paid expenses, if any, of
attendance at such meetings and such remuneration as the board of directors may
from time to time determine.
ARTICLE IV
COMMITTEES OF DIRECTORS
Designation of Standing Committees
Section 1. The corporation shall have the following standing
committees:
(a) An Executive Committee which shall have and may exercise
all the authority of the board of directors during the intervals between
meetings of the board of directors in the management of the business and affairs
of the corporation and may authorize the seal of the corporation to be affixed
to all papers which may require it. The committee shall consist of not less than
four members of the board of directors and shall include the chairman of the
board of directors and the president and/or a vice chairman as members.
(b) A Compensation and Organization Committee which shall have
the duty to review and to make recommendations to the board of directors with
respect to management organization, succession and development programs, the
election of corporate officers and their salaries and incentive compensation or
bonus awards; to make the decisions required by a committee of the board of
directors under all stock option and restricted stock and deferred stock plans;
and to approve and report to the board of directors changes in salary ranges for
all other major position categories and changes in retirement plans, group
insurance plans, investment plans or other benefit plans and management
incentive compensation or bonus plans. The committee shall consist of not less
than four members of the board of directors who are not officers or employees of
the corporation.
(c) An Audit Committee which shall have ongoing
responsibilities with respect to adequacy of financial reporting, compliance
with corporate policies, and efficacy of corporate controls. This committee
shall provide reasonable assurance that the corporation's financial disclosure
fairly portrays its financial condition, results of operations, and long-term
plans and commitments. It likewise shall provide reasonable assurance of
substantial compliance with corporate policies applicable to business conduct.
The committee shall monitor the corporation's system of internal controls for
adequacy and implementation. The Audit Committee additionally shall select and
employ on behalf of the corporation, subject to ratification by stockholders, a
firm of certified public accountants whose duty shall be to audit the books and
accounts of the corporation and its subsidiaries and affiliates for the fiscal
year for which it is appointed. The committee shall confer with such firm on the
scope of such audit and on other services to be provided and on the costs
thereof and shall review with the firm at the conclusion of the audit and prior
to any publication of audited financial statements the findings disclosed in
such audit. The committee periodically shall report and make appropriate
recommendations to the board of directors. It shall consist of not less than
three members of the board of directors who are not officers or employees of the
corporation.
(d) A Committee on Directors which shall study and make
recommendations to the board of directors concerning the size and composition of
the board and committees of the board, recommend nominees for election or
reelection as directors, and consider other matters pertaining to board
membership such as retirement policy and compensation of non-employee directors.
Directors who are not officers or employees of the corporation and whose terms
continue after the next annual meeting will be designated to serve on this
committee.
(e) A Finance Committee which shall provide review and
oversight of and make recommendations to the board of directors on the
corporation's financing requirements and programs to obtain funds; relations
with banks, bondholders and other creditors, and equity holders; forecasting
procedures on revenues, expenses, earnings, and cash flow; operating and capital
expenditure budgets; dividend policy; the adoption of any compensation plan for
key employees which contemplates the issuance of stock of the corporation or
which is a significant cash compensation plan (other than an annual cash bonus
plan consistent with past practice); and acquisitions, divestitures and
significant transactions affecting the corporation's capital structure or
ownership. The Committee shall confer with the Pension and Investment Committee
established under the corporation's retirement plan and report periodically to
the board of directors on the funding of qualified pension plans of the
corporation and its subsidiaries and the investment performance of plan funds
and, on behalf of the board of directors, authorize necessary or desirable
changes in actuarial assumptions for funding the plans. The Committee shall
consider such other matters as may be referred to it from time to time by the
board of directors.
(f) A Corporate Affairs Committee which shall review and
recommend policies and programs which are important in maintaining a sound
position with those various publics whose understanding and goodwill are
necessary to the corporation's success. The committee shall report periodically
to the board of directors on the corporation's activities in fulfilling its
social responsibilities and complying with public policy, including employee
safety and occupational health, equal employment opportunity, product safety,
corporate contributions, and the relationship of the corporation to the
communities in which it operates. The committee shall consist of not fewer than
three members of the board of directors who are not officers or employees of the
corporation.
Other Committees of Directors
Section 2. The board of directors may, by resolution passed by a
majority of the whole board, designate from time to time other committees of the
board of directors of such number of directors and with such powers as the board
of directors may by resolution determine.
Appointment of Committee Members
Section 3. The board of directors at its meeting following the annual
meeting of stockholders shall designate the directors to constitute the
membership of each standing committee and the chairman thereof, and such
directors shall serve until the directors' meeting following the next annual
meeting of stockholders; provided, however, that vacancies during the year on
any standing committee shall be filled by the board of directors so that the
membership of each committee shall be filled at all times; and provided further
that in the absence or disqualification of any member of a committee, the
members of that committee present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the board of directors to act at the meeting in the place of the
absent or disqualified member.
Meetings--Quorum
Section 4. Meetings of each committee may be called by its chairman or
by any two members of the committee or by the chief executive officer of the
corporation or by resolution of the board of directors. Each such committee
shall fix its own rules of procedure. The presence of a majority of the members
of a committee shall be necessary to constitute a quorum for the transaction of
business, and the affirmative vote of a majority of all the members of the
committee shall be necessary for the adoption of any resolution or the taking of
any action. Each committee shall report to the board of directors all actions of
the committee at the next directors' meeting following any meeting of any such
committee. Regular minutes of the proceedings of each committee shall be kept in
a book provided for that purpose.
Remuneration of Committee Members
Section 5. Members of each committee not regularly employed by the
corporation or an affiliated corporation shall be entitled to expenses, if any,
of attendance at such meetings and such remuneration as may be determined by
resolution of the board of directors.
ARTICLE V
OFFICERS
General Provisions
Section 1. The officers of the corporation shall be a chairman of the
board of directors, a president, a treasurer, and a corporate secretary, and
such vice chairmen, executive vice presidents, senior vice presidents, vice
presidents, assistant treasurers, assistant secretaries or other officers as may
be elected or appointed by the board of directors. Either the chairman of the
board of directors or the president shall be the chief executive officer. Either
the president or an executive vice president shall be the chief operating
officer. The chairman of the board of directors, the president, and the vice
chairmen all shall be members of the board of directors. The officers shall have
authority and perform duties as set forth in these by-laws or as prescribed by
resolution adopted by the board of directors. The salaries and other
compensation of officers shall be fixed by the board of directors.
Election
Section 2. The officers of the corporation shall be elected annually by
the board of directors at the first meeting of the board of directors held after
each annual meeting of the stockholders. If the election of officers shall not
be held at such meeting, such election shall be held as soon thereafter as
conveniently may be. Vacancies may be filled or new officers created and filled
at any meeting of the board of directors. Each officer shall hold office until
his successor shall have been elected and shall have qualified or until his
death, resignation or removal in the manner hereinafter provided, or until the
board of directors shall by resolution determine that the office shall be left
unfilled. The chairman of the board and the president shall be chosen from the
members of the board of directors.
Removal
Section 3. Any officer elected by the board of directors may be removed
by the board of directors whenever in its judgment the best interests of the
corporation will be served thereby, but such removal shall be without prejudice
to the contract rights, if any, of the person so removed.
The Chairman of the Board of Directors
Section 4. The chairman of the board of directors shall have general
responsibility for the business and affairs of the corporation, subject to the
control of the board of directors. Such officer shall preside at all meetings of
the stockholders and of the board of directors of the corporation, shall have
all other responsibilities incident to the office of chairman of the board of
directors, and shall, by virtue of the office, be a member of the Executive
Committee of the board of directors. Such officer additionally may, with the
corporate secretary or an assistant secretary, sign certificates of capital
stock and other securities of the corporation.
The President
Section 5. The president shall have direct and active charge of the
business and affairs of the corporation under the direction of the chairman of
the board of directors and subject to the control of the board of directors.
Such officer shall perform such other duties as may be delegated from time to
time by the board of directors or the chairman thereof and shall have all other
responsibilities incident to the office of president. Such officer additionally
may, with the corporate secretary or an assistant secretary, sign certificates
of capital stock and other securities of the corporation. In the event of the
death or disability of the chairman of the board of directors, the president
shall assume the responsibilities of chairman of the board of directors.
The Vice Chairmen
Section 6. If elected, the vice chairmen shall have the respective
responsibilities incident to any other office or title conferred on them by the
board of directors and such other responsibilities as may be assigned from time
to time by the chairman of the board of directors. In the event of the death or
disability of the chairman of the board of directors and the president, the vice
chairmen in the chronological order of their election to that office shall
assume the responsibilities of chairman of the board of directors.
The Chief Executive Officer and the Chief Operating Officer
Section 7. The chief executive officer shall have authority to approve
basic policies, operating plans, and annual performance goals, subject to
approval of the board of directors as required. Such officer shall assure
uniform interpretation and administration of basic policies by all members of
management and shall have responsibility for such financial, legal, and other
administrative functions directly bearing on general corporate governance as are
determined from time to time by the chairman of the board of directors, subject
to approval of the board of directors as required. The chief operating officer
shall assist the chief executive officer in formulating and implementing overall
plans. Such officer shall have such responsibilities for management of general
manufacturing, sales, product distribution, and directly related staff functions
as are determined from time to time by the chairman of the board of directors.
The Executive Vice Presidents, The Senior Vice Presidents, and The Vice
Presidents
Section 8. If an executive vice president is elected and designated
chief operating officer, such executive vice president shall, in the event of
the death or disability of the president, assume the responsibilities of
president. If no executive vice president is designated chief operating officer,
then in the event of the death or disability of the president, first the
executive vice presidents, then the senior vice presidents, then the vice
presidents, each in chronological order of election, shall assume the
responsibilities of president. The executive vice presidents, the senior vice
presidents, and the vice presidents shall have such responsibilities and such
other powers as the board of directors, the chairman of the board of directors,
or the president from time to time shall prescribe.
The Treasurer and Assistant Treasurers
Section 9. The treasurer shall have charge and custody of all funds and
securities of the corporation, shall keep full and accurate accounts of the
receipts and disbursements in books belonging to the corporation, and shall
deposit all moneys and other valuable effects in the name and to the credit of
the corporation in such depositories as may be authorized from time to time by
the board of directors. Such officer shall disburse the funds of the corporation
as may be required in the conduct of the business and shall render to the chief
executive officer and the board of directors, at the regular meetings of said
board or whenever said board may require it, an account of all transactions as
treasurer and of the financial condition of the corporation. If required by the
board of directors, such officer shall give the corporation a bond in such form
and with such surety or sureties as shall be satisfactory to the board of
directors for the faithful performance of the duties of the office. In general,
such officer shall have the authority to perform all acts incident to the office
of treasurer, subject to the control of the board of directors. The assistant
treasurers, in the order of their election, shall, in the event of death or
disability of the treasurer, assume the responsibilities of the treasurer and
shall perform such other duties as the board of directors or the treasurer may
from time to time prescribe or delegate.
The Corporate Secretary and Assistant Secretaries
Section 10. The corporate secretary shall attend all meetings of the
board of directors and all meetings of the stockholders, record all proceedings
of the meetings of the board of directors and the stockholders in books to be
kept for those purposes and shall perform like duties for any committee of the
board of directors when requested. Such officer shall give, or cause to be
given, notice of all meetings of the stockholders and special meetings of the
board of directors and shall be the custodian of corporate records and the seal
of the corporation. Such officer additionally shall have authority to affix the
seal to any instrument requiring it and when so affixed, it may be attested by
signature. The assistant secretaries, in the order of their election, shall, in
the event of death or disability of the corporate secretary, assume the
responsibilities of the corporate secretary and shall perform such other duties
as the corporate secretary or the board of directors may from time to time
prescribe.
Voting Shares of Other Corporations
Section 11. Unless otherwise ordered by the board of directors, the
chairman of the board of directors or such person as he may appoint shall have
full power and authority, on behalf of the corporation, to attend any meetings
of stockholders of any corporation in which this corporation may hold stock and
to vote the shares held by this corporation at any such meeting, and at any such
meeting to possess and exercise any and all rights and powers incident to the
ownership of such shares.
ARTICLE VI
CERTIFICATES OF STOCK - DIVIDENDS
Section 1. (a) Every holder of stock in the corporation shall be entitled to
have a certificate signed in the name of the corporation by the chairman of the
board of directors or the president and the corporate secretary or an assistant
secretary, certifying the number of shares owned by him in the corporation. If
such certificate is countersigned (1) by a transfer agent other than the
corporation or its employee, or (2) by a registrar other than the corporation or
its employee, any other signature on the certificate may be a facsimile. In case
any officer, transfer agent, or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such
officer, transfer agent or registrar before such certificate is issued, the
certificate may be issued by the corporation with the same effect as if he were
such officer, transfer agent or registrar at the date of issue.
(b) All certificates surrendered to the corporation for
transfer shall be canceled and no new certificate shall be issued until the
former certificate for a like number of shares of the same class has been
surrendered and canceled or properly accounted for in the case of a lost
certificate.
Transfer of Shares
Section 2. Upon surrender to the corporation or transfer agent of the
corporation of a certificate of shares duly endorsed and accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
The board of directors may appoint one or more transfer agents and registrars of
transfer, and may require all stock certificates to bear the signature of a
transfer agent and of a registrar of transfers.
Registered Stockholders
Section 3. The corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware or elsewhere in these by-laws.
Dividends
Section 4. Dividends upon the capital stock of the corporation, subject
to the provisions, if any, of the certificate of incorporation, may be declared
by the board of directors at any regular or special meeting pursuant to law.
Dividends may be paid in cash, in property, or in shares of capital stock,
subject to the provisions of the certificate of incorporation.
ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The corporation (i) shall indemnify every person who is or was a
director or officer of the corporation or is or was serving at the corporation's
request as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise; and (ii) shall, if the board of directors so
directs, indemnify any person who is or was an employee or agent of the
corporation or is or was serving at the corporation's request as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise to the extent, in the manner, and subject to compliance with the
applicable standards of conduct, provided by Section 145 of the General
Corporation Law of the State of Delaware as the same (or any substitute
provision therefor) may be in effect from time to time. Without limiting the
foregoing, the corporation shall indemnify, and (subject to the receipt of any
required undertaking to repay expenses) advance expenses to, every person who is
a director of the corporation to the fullest extent permitted by law.
Such indemnification (i) shall not be deemed exclusive of any other
rights to which any person seeking indemnification under or apart from this
Article VII may be entitled under any by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office, and (ii) shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
ARTICLE VIII
GENERAL PROVISIONS
Checks
Section 1. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers, or such other person or persons, as
the board of directors may from time to time designate.
Fiscal Year
Section 2. The fiscal year of the corporation shall begin on the first
day of January of each year and end at the close of the last day of December in
the same year.
Seal
Section 3. The corporate seal shall have inscribed thereon the name of
the corporation, the year of its organization and the words "Corporate Seal,
Delaware". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
Waiver of Notice
Section 4. Whenever any notice whatever is required to be given under
the provisions of the statutes or of the certificate of incorporation or of
these by-laws, a waiver thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time stated therein, shall
be deemed equivalent thereto.
ARTICLE IX
AMENDMENTS
These by-laws may be amended or repealed (i) subject to Article TWELFTH
of the corporation's Restated Certificate of Incorporation, by the affirmative
vote of a majority of the total number of directors or (ii) by the affirmative
vote of the holders of 80% of the voting power of the corporation's stock
outstanding and entitled to vote thereon.