EXHIBIT 3.1
AMENDED AND RESTATED
BY-LAWS
OF
NAVISTAR INTERNATIONAL CORPORATION
_______________
Incorporated Under the Laws
of the State of Delaware
PAGE 1
AMENDED AND RESTATED
BY-LAWS
OF
NAVISTAR INTERNATIONAL CORPORATION
ARTICLE I.
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Meetings of Stockholders
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Section 1. Annual Meetings. The annual meeting of the
stockholders for the election of directors and for the transaction of such
other business as may properly come before the meeting shall be held in
the first three (3) months of each calendar year.
Section 2. Special Meetings. A special meeting of the
stockholders for any purpose or purposes, unless otherwise prescribed by
statute, may be called at any time by the Chairman of the Board and Chief
Executive Officer or the Board of Directors.
Section 3. Time and Place of Meetings. All meetings of the
stockholders shall be held at such times and places, within or without the
State of Delaware, as may from time to time be fixed by the Board of
Directors, or as shall be specified or fixed in the respective notices or
waivers of notice thereof.
Section 4. Notice of Meetings. Except as otherwise expressly
required by law or by the Certificate of Incorporation of Navistar
International Corporation ("Corporation"), notice of each meeting of the
stockholders shall be given, at least fifteen (15) days in the case of an
annual meeting, and ten (10) days in the case of a special meeting, before
the day on which the meeting is to be held, to each stockholder of record
entitled to vote at such meeting by mailing such notice in a postage
prepaid envelope addressed to the' stockholder at the stockholder's last
post office address appearing on the stock records of the Corporation.
Except as otherwise expressly required by law, no publication of any
notice of a meeting of the stockholders shall be required. At special
meetings of stockholders no business other than that specified in the
notice of the meeting or germane thereto shall be transacted at such
meeting. Except as otherwise expressly required by law, notice of any
adjourned meeting of the stockholders need not be given.
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Section 5. Quorum. At each meeting of the stockholders, except
as otherwise expressly required by law, stockholders holding one-third
(1/3) of the shares of stock of the Corporation, issued and outstanding,
and entitled to be voted thereat, shall be present in person or by proxy
to constitute a quorum for the transaction of business. In the absence of
a quorum at any such meeting or any adjournment or adjournments thereof, a
majority in voting interest of those present in person or by proxy and
entitled to vote thereat,or in the absence therefrom of all the
stockholders, any officer entitled to preside at, or to act as secretary
of, such meeting may adjourn such meeting from time to time until
stockholders holding the amount of stock requisite for a quorum shall be
present or represented. At any such adjourned meeting at which a quorum
may be present any business may be transacted which might have been
transacted at the meeting as originally called.
Section 6. Organization. At each meeting of the stockholders,
one of the following shall act as chairman of the meeting and preside
thereat, in the following order of precedence:
(a) the Chairman of the Board and Chief Executive officer;
(b) the President and Chief Operating Officer;
(c) an Executive Officer in order of rank of office and by
seniority within the same rank; or
(d) a stockholder of record of the Corporation who shall be
chosen chairman of such meeting by a majority in voting interest of
the stockholders present in person or by proxy and entitled to vote
thereat.
The Secretary, or, if he or she shall be absent from such meeting, the
person (who shall be an Assistant Secretary, if an Assistant Secretary
shall be present thereat) whom the chairman of such meeting shall appoint,
shall act as secretary of such meeting and keep the minutes thereof.
Section 7. Order of Business. The order of business at each
meeting of the stockholders shall be determined by the chairman of such
meeting, but such order of business at any meeting at which a quorum is
present may be changed by the vote of a majority in voting interest of
those present in person or by proxy at such meeting and entitled to vote
thereat.
Section 8. Voting. Each stockholder shall, at each meeting of
the stockholders, be entitled to one vote in person or by proxy for each
share of stock of the Corporation held by the stockholder and registered
in the stockholder's name on the books of the Corporation on the date
fixed or determined pursuant to the provisions of Section 5 of Article VI
of these By-laws as the record date for the determination of stockholders
who shall be entitled to receive notice of and to vote at such meeting.
PAGE 3
Shares of its own stock belonging to the Corporation shall not
be voted directly or indirectly. Any vote on stock of the Corporation may
be given at any meeting of the stockholders by the stockholder entitled
thereto in person or by the stockholder's proxy appointed by an instrument
in writing delivered to the Secretary or an Assistant Secretary of the
Corporation or to the secretary of the meeting. The attendance at any
meeting of a stockholder who may theretofore have given a proxy shall not
have the effect of revoking the same unless the stockholder shall in
writing so notify the secretary of the meeting prior to the voting of the
proxy. At all meetings of the stockholders all matters, except as
otherwise provided in these By-laws or by law, shall be decided by the
vote of a majority in voting interest of the stockholders present in
person or by proxy and entitled to vote thereat, a quorum being present.
Except in the case of votes for the election of directors, the vote at any
meeting of the stockholders on any question need not be by ballot, unless
so directed by the chairman of the meeting. On a vote by ballot each
ballot shall be signed by the stockholder voting, or by the stockholder's
proxy, if there be such proxy.
Section 9. List of Stockholders. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of its
stock ledger to prepare and make, at least ten (10) days before every
meeting of the stockholders, a complete list of the stockholders entitled
to vote thereat, arranged in alphabetical order, and showing the address
of each stockholder and the number of shares registered in the name of
each stockholder. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten (10) days prior to said
meeting either at a place within the city where said meeting is to be held
and which place shall be specified in the notice of said meeting, or, if
not so specified, at the place where said meeting is to be held, and such
list shall be produced and kept at the time and place of said meeting
during the whole time thereof, and may be inspected by any stockholder who
is present. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the stock ledger or such list or the
books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
Section 10. Inspectors or Judges. The Board of Directors, in
advance of any meeting of stockholders, may appoint one or more inspectors
or judges to act at such meeting or any adjournment thereof. If the
inspectors or judges shall not be so appointed, or if any of them shall
fail to appear or act, the chairman of such meeting shall appoint the
inspectors or judges, or such replacement or replacements therefor, as the
case may be. Such inspectors or judges, before entering on the discharge
of their duties, shall take and sign an oath or affirmation faithfully to
execute the duties of inspectors or judges at meetings for which they are
appointed. At such meeting, the inspectors or judges shall receive and
take in charge the proxies and ballots and decide all questions touching
the qualification of voters and the validity of proxies and the acceptance
or rejection of-votes. An inspector or judge need not be a stockholder of
the Corporation, and any officer of the Corporation may be an inspector or
judge on any question other than a vote for or against his or her election
to any position with the Corporation.
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ARTICLE II.
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Board of Directors
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Section 1. General Powers. The business and affairs of the
Corporation shall be managed by the Board of Directors.
Section 2. Number and Time of Holding office. Subject to the
requirements of the laws of the State of Delaware, the Board may from time
to time by the vote of the majority of the whole Board determine the
number of directors. Until the Board shall otherwise so determine, the
number of directors shall be fifteen (15). Each of the directors of the
Corporation shall hold office until the expiration of his or her term and
until his or her successor shall be elected. Directors need not be
stockholders.
Section 3. Election of Directors. Except as otherwise provided
in the Certificate of Incorporation of the Corporation, at each meeting of
the stockholders for the election of directors, at which a quorum is
present, the persons receiving the greatest number of votes, up to the
number of directors to be elected, shall be the directors. Such election
shall be by ballot; provided, however, a nomination shall be accepted and
votes cast for a nominee shall be counted by the inspectors or judges of
the election, only if the Secretary of the Corporation has received at
least 24 hours prior to the meeting a statement over the signature of the
nominee that he or she consents to being a nominee and, if elected,
intends to serve as a director.
Section 4. Organization and Order of Business. At each meeting
of the Board, one of the following shall act as chairman of the meeting
and preside thereat, in the following order of precedence:
(a) the Chairman of the Board and Chief Executive officer;
(b) any director chosen by a majority of the directors present
thereat.
The Secretary, or in case of his or her absence the person whom the
chairman of such meeting shall appoint, shall act as secretary of such
meeting and keep the minutes thereof. The order of business at each
meeting of the Board of Directors shall be determined by the chairman of
such meeting.
Section 5. Resignations. Any director may resign at any time
by giving written notice of his or her resignation to the Chairman of the
Board and Chief Executive Officer, or the Secretary of the Corporation.
Any such resignation shall take effect at the time specified therein, or,
if the time when it shall become effective shall not be specified therein,
then it shall take effect when accepted by action of the Board of
Directors. Except as aforesaid, the acceptance of such resignation shall
not be necessary to make it effective.
Section 6. Vacancies, etc. Except as otherwise provided in the
Certificate of Incorporation of the Corporation, in case of any vacancy on
the Board, or in case of any newly created directorship, a director to
fill the vacancy or the newly created directorship for the unexpired
portion of the term being filled may be elected by the holders of shares
of stock of the Corporation entitled to vote in respect thereof at an
annual or special meeting of said holders or by a majority of the
directors of the Corporation then in office though less than a quorum.
PAGE 5
Section 7. Place of Meeting. The Board may hold its meetings
at such place or places within or without the State of Delaware as the
Board may from time to time by resolution determine or as shall be
specified or fixed in the respective notices or waivers of notice thereof;
provided, that all meetings, regular or special, shall be held at the
chief executive office of the Corporation in Chicago, Illinois, unless
otherwise ordered or approved by a majority of the whole Board.
Section 8. First Meeting. As soon as practicable after each
annual election of directors, the Board shall meet for the purpose of
organization, the election of officers and the transaction of other
business. Such meeting shall be held at the time and place theretofore
fixed by the Board for the next regular meeting of the Board and no notice
thereof need be given; provided, however, that the Board may determine
that such meeting shall be held at a different place and time but notice
thereof shall be given in the manner hereinafter provided for special
meetings of the Board.
Section 9. Regular Meetings. Regular meetings of the Board
shall be held at such times as the Board shall from time to time
determine. Notices of regular meetings need not be given. If any day
fixed for a regular meeting shall be a legal holiday at the place where
the meeting is to be held, then the meeting which would otherwise be held
on that day shall be postponed until the same hour on the same day of the
next succeeding week in which such day shall not be a legal holiday at
such place, or at such other time and place as the Board shall determine
in which event notice thereof shall be given.
Section 10. Special Meetings; Notice. Special meetings of the
Board shall be held whenever called by the Chairman of the Board and Chief
Executive Officer or one-third (1/3) of the directors at the time in
office. The Secretary shall give notice to each director as hereinafter
in this Section provided of each such special meeting, in which shall be
stated the time and place of such meeting. Notice of each such meeting
shall be mailed to each director, addressed to the director at his or her
residence or usual place of business, at least two (2) days before the day
on which such meeting is to be held; or shall be sent addressed to him or
her at such place by telegraph, cable, wireless or other form of recorded
communication, or be delivered personally or by telephone not later than
the day before the day on which such meeting is to be held. Notice of any
meeting of the Board need not, however, be given to any director, if
waived by him or her in writing or by telegraph, cable, wireless or other
form of recorded communication, before, during or after such meeting, or
if he or she shall be present at such meeting; and any meeting of the
Board shall be a legal meeting without any notice thereof having been
given if all the directors of the Corporation then in office shall be
present thereat.
Dividends may be declared upon the stock of the Corporation at
any special meeting of the Board of Directors; provided, that the notice
of said special meeting states specifically the fact that dividend action
is to be considered. Any and all other business may be transacted at a
special meeting unless notice of the meeting specifically states that
action will be taken only upon the matters listed in the notice.
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Section 11. Quorum and Manner of Acting. Except as otherwise
provided in these By-laws or by law, a majority of directors at the time
in office shall be present in person at any meeting of the Board of
Directors in order to constitute a quorum for the transaction of business
at such meeting, and the affirmative vote of at least a majority of the
directors present at any such meeting, at which a quorum is present, shall
be necessary for the passage of any resolution or act of the Board. In
the absence of a quorum from any such meeting, a majority of the directors
present thereat may adjourn such meeting from time to time until a quorum
shall be present thereat. Notice of any adjourned meeting need not be
given. The directors shall act only as a board and the individual
directors shall have no power as such.
Section 12. Action by Consent. Unless otherwise restricted by
the Certificate of Incorporation, any action required or permitted to be
taken at any meeting of the Board of Directors, or of any committee
thereof, may be taken without a meeting, if prior to such action a written
consent thereto is signed by all members of the Board or of such committee
as the case may be, and such written consent is filed with the minutes of
proceedings of the Board or committee.
Section 13. Committees. The Board of Directors may appoint
standing committees of its members. Such committees shall have such
powers as are conferred by the By-laws or authorized by the Board of
Directors. The members of all standing committees shall be appointed
annually at the first meeting of the Board of Directors after the annual
meeting of the stockholders and shall continue as members until their
successors are appointed, subject to the power of the Board to remove any
member of a committee at any time and to appoint a successor.
Section 14. Meeting by Communication Equipment. Members of the
Board of Directors or any committee appointed by the Board of Directors,
may participate in a meeting of the Board of Directors or of such
committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and such participation in a meeting shall constitute
presence in person at such meeting.
ARTICLE III.
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Executive Committee
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Section 1. Number, Appointment, Term of Office. There shall be
an Executive Committee consisting of not less than three (3) and not more
than eight (8) regular members appointed from and by the Board of
Directors. In addition to the regular members, the Chairman of the Board
and Chief Executive Officer shall be a member ex officio. The regular
members of the Committee shall be appointed by the affirmative vote of a
majority of the whole Board and shall hold office until the first meeting
of the Board after the next annual meeting of the stockholders until their
successors are appointed. The Board shall also designate two (2) of its
members as first and second alternates to serve as members of the
Executive Committee in the absence of a regular member or members. A
vacancy in a regular or alternate membership may be filled by the Board at
any time.
PAGE 7
Any appointed regular or alternate member of the Executive
Committee shall be subject to removal at any time by the affirmative vote
of a majority of the whole Board.
Section 2. Functions and Powers. The Executive Committee shall
represent the Board of Directors between meetings for the purpose of
consulting with the officers and giving special consideration to matters
of importance affecting the policies, financing, management and operations
of the business, and taking action thereon or making recommendations to
the Board. The Board of Directors reserves to itself alone the power to
elect and remove officers, to declare dividends, issue stock, recommend to
shareholders any action requiring their approval, change the membership of
any committee at any time, and discharge any committee either with or
without cause at any time. Subject to the foregoing limitations, the
Executive Committee shall possess and may exercise all other powers of the
Board of Directors during the intervals between meetings of the Board of
Directors.
Section 3. Meetings. The Executive Committee shall meet as
often as may be deemed necessary and expedient. Meetings may be called by
standing resolution of the Committee, or at the request of the Chairman of
the Board and Chief Executive Officer or of any two (2) members of the
Committee. The Secretary shall notify each member of the Committee of
each meeting, giving at least two (2) days' notice by mail or one (1)
day's notice by telegraph or telephone, but such notice may be waived by
any member. The purposes of a meeting need not be specified in the notice
or waiver of notice of any meeting. Whenever it appears that a regular
member will be unable to attend a meeting, the Secretary shall endeavor to
obtain the attendance of an alternate member.
At each meeting of the Board of Directors the Committee shall
make a report to the Board of all action taken since its last report.
Such reports may be made orally or in writing and only such matters need
be recorded in the minutes of the Executive Committee as the Committee
deems proper or the Board of Directors may require.
Section 4. Organization. A majority of the Executive Committee
shall constitute a quorum. The Chairman of the Board and Chief Executive
Officer shall preside at meetings of the Executive Committee. If the
Chairman of the Board and Chief Executive Officer is absent, the Committee
shall appoint a temporary Chairman from among the members present. In
other respects the Committee shall fix its own rules of procedures.
ARTICLE IV.
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Officers
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Section 1. Election, Appointment, Term of Office. The
Executive Officers of the Corporation shall consist of a Chairman of the
Board and Chief Executive officer, a President and Chief Operating Officer
and such number of other Executive Officers as the Board of Directors may
determine from time to time. There shall also be a General Counsel, a
Treasurer, a Controller and a Secretary, any of whom may also be an
Executive Officer.
The Board of Directors may also appoint such other officers and
agents as it may deem necessary, who shall have such authority and perform
such duties as may be prescribed by the Board.
PAGE 8
All Executive Officers and other officers of the Corporation
shall be regularly elected or appointed by the majority vote of the whole
Board of Directors at its first meeting after the annual meeting of the
stockholders and shall hold office until the first meeting of the Board
after the next annual meeting of the stockholders, and until their
successors are elected or appointed.
If additional officers are elected or appointed during the year,
they shall hold office until the next annual meeting of the Board of
Directors at which officers are regularly elected or appointed and until
their successors are elected or appointed.
A vacancy in any office may be filled for the unexpired portion
of the term in the same manner as provided for election or appointment to
such office.
All officers and agents elected or appointed by the Board of
Directors shall be subject to removal at any time by the Board of
Directors.
Section 2. Chairman of the Board and Chief Executive Officer.
The Chairman of the Board and Chief Executive Officer shall be the chief
executive officer of the Corporation, and shall have the powers and
perform the duties incident to that position. Subject to the Board of
Directors, he or she shall be in general and active charge of the entire
business and all the affairs of the Corporation, and shall be its chief
policy-making officer. He or she shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors or
provided in the Bylaws.
Section 3. President and Chief Operating Officer. Under the
direction of the Chairman of the Board and Chief Executive Officer and
subject to the Board of Directors, the President and Chief Operating
Officer shall have general charge of the business operations. He shall
have such other powers and perform such other duties as may be prescribed
by the Chairman of the Board and Chief Executive Officer, or the Board of
Directors or as may be provided in the By-laws.
Section 4. Executive Officers. Each Executive Officer shall
have such powers, duties and titles as shall be prescribed by the Board of
Directors at the time of his or her election and such other powers and
duties as may be assigned to him or her from time to time by the Chairman
of the Board and the Chief Executive officer, the President and Chief
Operating officer, or the Board of Directors.
Section 5. General Counsel. The General Counsel shall have
charge of all matters of legal import concerning the Corporation and of
the department relating to such matters. He or she shall have such other
powers and duties as may be assigned to him or her by the Chairman of the
Board and Chief Executive Officer, the President and Chief Operating
Officer, or the Board of Directors.
Section 6. Treasurer. The Treasurer shall be responsible for
safeguarding the cash and securities of the Corporation and the
formulation of the investment and financial policies of the Corporation.
He or she shall have such other powers and duties as may be assigned to
him or her by the Chairman of the Board and' Chief Executive Officer, the
President and Chief Operating Officer, or the Board of Directors.
PAGE 9
Section 7. Controller. The Controller shall be in charge of
the accounts of the Corporation and the maintenance of adequate accounting
procedure and records of the Corporation. He or she shall have such other
powers and duties as may be assigned to him or her by the Chairman of the
Board and Chief Executive officer, the President and Chief Operating
Officer, or the Board of Directors.
Section 8. Secretary. The Secretary shall keep the records of
all meetings of the stockholders and of the Board of Directors and of the
Executive Committee. He or she shall affix the seal of the Corporation to
all deeds, contracts, bonds or other instruments requiring the corporate
seal when the same have been signed on behalf of the Corporation by a duly
authorized officer. He or she shall perform such other duties as may be
assigned to him or her from time to time by the Chairman of the Board and
Chief Executive Officer, the President and Chief Operating Officer, or the
Board of Directors.
ARTICLE V.
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Contracts, Checks, Drafts, Bank Accounts, Etc.
---------------------------------------------
Section 1. Execution of Documents by Officers. All of the
Executive Officers of the Corporation elected as provided in Section 1 of
Article IV of the By-laws, shall have power to execute and deliver any
deeds, contracts, mortgages, bonds, debentures and other documents for and
in the name of the Corporation.
All appointed officers shall have such powers with respect to
execution and delivery of deeds, contracts, mortgages, bonds, debentures
and other documents as may be assigned to them by the Board of Directors.
Section 2. Deposits. All funds of the Corporation not
otherwise employed shall be deposited from time to time to the credit of
the Corporation or otherwise as the Board of Directors, the Chairman of
the Board and Chief Executive Officer, the President and Chief Operating
officer, or the Treasurer shall direct in such banks, trust companies or
other depositories as the Board of Directors may select or as may be
selected by any officer or officers or agent or agents of the Corporation
to whom power in that respect shall have been delegated by the Board of
Directors. For the purpose of deposit and for the purpose of collection
for the account of the Corporation, checks, drafts and other orders for
the payment of money which are payable to the order of the Corporation may
be endorsed, assigned and delivered by any officer or agent of the
Corporation.
PAGE 10
Section 3. Proxies in Respect of Stock or Other Securities of
Other Corporations. Unless otherwise provided by resolution adopted by
the Board, each of the Executive officers of the Corporation elected as
provided in Section 1 of Article IV of the By-laws may from time to time
appoint an attorney or attorneys or agent or agents of the Corporation to
exercise in the name and on behalf of the Corporation the powers and
rights which the Corporation may have as the holder of stock or other
securities in any other corporation to vote or consent in respect of such
stock or other securities, may instruct the person or persons so appointed
as to the manner of exercising such powers and rights, and may execute or
cause to be executed in the name and on behalf of the Corporation and
under its corporate seal, or otherwise, all such written proxies, powers
of attorney or other instruments as such Executive Officer may deem
necessary or proper in order that the Corporation may exercise its said
powers and rights.
ARTICLE VI.
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Shares and Their Transfers
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Examination of Books
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Section 1. Certificates for Stock. Every holder of stock of
the Corporation shall be entitled to have a certificate or certificates,
in such form as the Board shall prescribe, certifying the number of shares
of stock of the Corporation owned by the stockholder. The certificates
representing shares of such stock shall be numbered in the order in which
they shall be issued and shall be signed in the name of the Corporation by
the person who was at the time of signing the Chairman of the Board and
Chief Executive Officer, the President and Chief Operating officer, or an
Executive Officer and by the person who was at the time of the Treasurer
or an Assistant Treasurer and its seal may be affixed thereto; provided,
however, that the signature of such Executive Officer of the Corporation
and of such Treasurer or Assistant Treasurer and the seal of the
Corporation may be facsimile. In case any officer or officers of the
Corporation who shall have signed, or whose facsimile signature or
signatures shall have been used on, any such certificate or certificates
shall cease to be such officer or officers, whether because of death,
resignation or otherwise, before such certificate or certificates shall
have been delivered by the Corporation such certificate or certificates
may nevertheless be adopted by the Corporation and be issued and delivered
as though the person or persons who signed such certificate or
certificates, or whose facsimile signature or signatures shall have been
used thereon, had not ceased to be such officer or officers. A record
shall be kept of the respective names of the persons, firms or
corporations owning the stock represented by certificates for stock of the
Corporation, the number of shares represented by such certificates,
respectively, and the respective dates thereof, and in case of
cancellation, the respective dates of cancellation. Every certificate
surrendered to the Corporation for exchange or transfer shall be canceled
and a new certificate or certificates shall not be issued in exchange for
any existing certificate until such existing certificate shall have been
so canceled except in cases provided for in Section 4 of this Article VI.
PAGE 11
Section 2. Transfers of Stock. Transfers of shares of the
stock of the Corporation shall be made only on the books of the
Corporation by the registered holder thereof, or by his or her attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation, or with a transfer clerk or a transfer agent
appointed as in Section 3 of this Article VI provided, and upon surrender
of the certificate or certificates for such shares properly endorsed and
payment of all taxes thereon. The person in whose name shares of stock
stand on the books of the Corporation shall be deemed the owner thereof
for all purposes as regards the Corporation.
Section 3. Regulations. The Board may make such rules and
regulations as it may deem expedient, not inconsistent with these By-laws,
concerning the issue, transfer and registration of certificates for stock
of the Corporation. The Board may appoint or authorize any officer or
officers to appoint one or more transfer clerks, any of whom may be
employees of the Corporation, or one or more transfer agents and one or
more registrars, and may require all certificates for stock to bear the
signature or signatures of any of them; provided, however, that the
signature of any transfer clerk, transfer agent, or registrar may be
facsimile. In case any transfer clerk, transfer agent or registrar who
has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such transfer clerk, transfer agent, or registrar
before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such transfer clerk, transfer agent, or
registrar at the date of issue.
Section 4. Lost, Destroyed and Mutilated Certificates. The
owner of any stock of the Corporation shall immediately notify the
Corporation of any loss, destruction or mutilation of the certificate
therefor, and the Corporation may issue a new certificate of stock in the
place of any certificate theretofore issued by it, alleged to have been
lost or destroyed, and the Board may, in its discretion, require the owner
of the lost or destroyed certificate, or his or her legal representatives,
to give the Corporation a bond in such sum, limited or unlimited, and in
such form and with such surety or sureties, as the Board shall in its
uncontrolled discretion determine, to indemnify the Corporation against
any claim that may be made against it on account of the alleged loss or
destruction of any such certificate, or the issuance of such new
certificate.
Section 5. Record Date. To determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for
the purpose of any other lawful action, the Board of Directors may fix, in
advance, a record date, which shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting, nor more than sixty
(60) days prior to any other action. If no record date is fixed by the
Board of Directors:
(a) The record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the
close of business on the day next preceding the day on which notice
is given.
PAGE 12
(b) The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting
unless the Board of Directors shall fix a new record date for the
adjourned meeting.
Section 6. Examination of Books by Stockholders. The Board may
determine, from time to time, whether and to what extent, at what times
and places, and under what conditions and regulations, the accounts and
books of the Corporation, or any of them, shall be open to the inspection
of the stockholders, and no stockholder shall have any right to inspect
any account or book or document of the Corporation, except as conferred by
the laws of the State of Delaware or as authorized by resolution adopted
by the Board or by the stockholders of the Corporation entitled to vote in
respect thereof.
ARTICLE VII.
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Offices, Etc.
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Section 1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be in the City of Wilmington,
County of New Castle, and the name of the resident agent in charge thereof
shall be The Corporation Trust Company.
Section 2. Other Offices. The Corporation also may have an
office or offices other than sad principal office at such place or places,
either within or without the State of Delaware, as provided in these By-
laws or as the Board may from time to time appoint or as the business of
the Corporation may require.
Section 3. Books and Records. Except as otherwise required by
law, the Certificate of Incorporation or these By-laws, the Corporation
may keep the books and records of the Corporation in such place or places
within or without the State of Delaware as the Board may from time to time
by resolution determine or the business of the Corporation may require;
provided, however, the principal accounting books and records of the
Corporation, including the records of meetings of the Board of Directors,
shall be kept at the chief executive office of the Corporation in Chicago,
Illinois, unless otherwise determined by resolution of the Board of
Directors.
PAGE 13
ARTICLE VIII.
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Dividends
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Subject to the provisions of law, of the Certificate of
Incorporation of the Corporation and of these By-laws, the Board may
declare and pay dividends upon the shares of the stock of the Corporation
either (a) out of its net assets in excess of its capital as computed in
accordance with the provisions of the laws of the State of Delaware or
(b) in case there shall be no such excess, out of its net profits for the
fiscal year then current and/or the preceding fiscal year, whenever and in
such amounts as, in the opinion of the Board, the condition of the affairs
of the Corporation shall render it advisable. Dividends upon the shares
of stock of the Corporation may be declared at any regular meeting of the
Board of Directors and also at a special meeting, if notice of such
proposed action is given as provided Section 10 of Article II of these By-
laws.
ARTICLE IX.
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Seal
----
The Board shall provide a corporate seal, which shall be in the
form of a circle and shall bear the full name of the Corporation and the
words and figures "Incorporated 1985 Delaware", or words and figures of
similar import. The seal or a facsimile thereof may be impressed or
affixed or reproduced or other use made thereof by the Secretary or any
Assistant Secretary or any other officer authorized by the Board.
ARTICLE X.
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Fiscal Years
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The fiscal year of the Corporation shall end on the thirty-first
day of October in each year.
ARTICLE XI.
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Waiver of Notices
-----------------
Whenever any notice whatever is required to be given by these
By-laws or by the Certificate of Incorporation of the Corporation or by
the General Corporation Law of the State of Delaware, 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.
PAGE 14
ARTICLE XII.
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Indemnification
---------------
Section 1. Coverage. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative ("proceeding"), by reason of the fact that he or she is or
was a director or officer of the Corporation (which term shall include any
predecessor corporation of the Corporation) or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans
("indemnitee"), whether the basis of such proceeding is alleged action in
an official capacity as a director, officer, employee or agent or in any
other capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation law, as the same
exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation
to provide broader indemnification rights than said law permitted the
Corporation to provide prior to such amendment), against all expenses,
liability and loss (including attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid in settlement) reasonably
incurred or suffered by such indemnitee in connection therewith and such
indemnification shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators; provided however, that,
except as provided in Section 2 of this Article XII with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors. The right to
indemnification conferred in this Article XII shall be a contract right
and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition; provided however, that, if the Delaware General Corporation
law requires, the payment of such expenses incurred by a director or
officer in his or her capacity as a director or officer (and not in any
other capacity in which service was or is rendered by such indemnitee,
including, without limitation, service to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such
indemnitee, to repay all amounts so advanced if it ultimately be
determined by final judicial decision from which there is no further right
to appeal that such indemnitee is not entitled to be indemnified for such
expenses under this Article XII or otherwise.
PAGE 15
Section 2. Claims. If a claim under Section 1 of this Article
XII is not paid in full by the Corporation within sixty (60) days after a
written claim has been received by the Corporation, except in the case of
a claim for expenses incurred in defending a proceeding in advance of its
final disposition, in which case the applicable period shall be twenty
(20) days, the indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit or in a suit brought by the
Corporation to recover payments by the Corporation of expenses incurred by
an indemnitee in defending in his or her capacity as a director or
officer, a proceeding in advance of its final disposition, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending
such claim. In any action brought by the indemnitee to enforce a right to
indemnification hereunder (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any, has been tendered to
the Corporation) or by the Corporation to recover payments by the
Corporation of expenses incurred by an indemnitee in defending, in his or
her capacity as a director or officer, a proceeding in advance of its
final disposition, the burden of proving that the indemnitee is not
entitled to be indemnified under this Article XII or otherwise shall be on
the Corporation. Neither the failure of the Corporation (including the
Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such action that
indemnification of the indemnitee is proper in the circumstances because
the indemnitee has met the applicable standard of conduct set forth in the
Delaware General Corporation law, nor an actual determination by the
Corporation (including the Board of Directors, independent legal counsel
or its stockholders) that the indemnitee has not met such applicable
standard of conduct, shall be a presumption that the indemnitee has not
met the applicable standard of conduct, or in the case of such an action
brought by the indemnitee, be a defense to the action.
Section 3. Rights Not Exclusive. The rights conferred on any
person by Sections 1 and 2 of this Article XII shall not be exclusive of
any other right which such person may have or hereafter acquire under any
statute, this certificate of incorporation, by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 4. Insurance. The Corporation may maintain insurance,
at its expense, to protect itself and any director, officer, employee or
agent of the Corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the Delaware General
Corporation law.
Section 5. Employees. Persons who are not included as
indemnities under Section 1 of this Article XII but are employees of the
Corporation or any subsidiary may be indemnified to the extent authorized
at any time or from time to time by the Board of Directors.
PAGE 16
ARTICLE XIII.
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Amendments
----------
These By-laws as they shall be at any time may be amended,
altered or repealed by the Board of Directors at any regular meeting of
the Board of Directors or at any special meeting if the proposed
amendment, alteration or repeal is stated in the notice of the special
meeting; but any by-laws made by the Board may be altered, amended or
repealed by the stockholders in the manner provided in the Certificate of
Incorporation of the Corporation.
ARTICLE XIV.
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National Emergency
------------------
Section 1. Definition and Application. For the purposes of
this Article XIV the term "national emergency" is defined as an emergency
situation resulting from an attack upon the United States, a nuclear
disaster within the United States, a catastrophe, or other emergency
condition, as a result of which attack, disaster, catastrophe or emergency
condition a quorum of the Board of Directors cannot readily be convened
for action. Persons not directors of the Corporation may conclusively
rely upon the determination by the Board of Directors of the Corporation,
at a meeting held or purporting to be held pursuant to this Article XIV
that a national emergency as hereinabove defined exists regardless of the
correctness of such determination made or purporting to be made as
hereinafter provided. During the existence of a national emergency the
provisions of this Article XIV shall become operative, but, to the extent
not inconsistent with such provisions, the other provisions of these By-
laws shall remain in effect during any national emergency and upon its
termination the provisions of this Article XIV shall cease to be
operative.
Section 2. Meetings, etc. 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. 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 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. 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 Executive
Officers, Assistant Controllers, Assistant Secretaries and Assistant
Treasurers. 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 Director 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.
PAGE 17
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. All directors, officers, employees
and agents of, and all persons dealing with, the Corporation, if acting in
good faith, may conclusively rely upon any action taken at any such
special meeting.
Section 3. Amendment. The Board of Directors shall have the
power to alter, amend, or repeal any of these By-laws by the affirmative
vote of at least two-thirds (2/3) of the directors present at any special
meeting attended by two (2) or more directors and held in the manner
prescribed in Section 2 of this Article XIV, if it is determined in good
faith by said two-thirds (2/3) that such alteration, amendment or repeal
would be conducive to the proper direction of the Corporation's affairs.
Section 4. Chief Executive and Operating Officers. If during
the existence of a national emergency, the Chairman of the Board and Chief
Executive Officer becomes incapacitated, cannot by reasonable effort be
located or otherwise is unable or unavailable to perform the duties of his
or her office, the President and Chief Operating Officer is hereby
designated also as Chairman of the Board and Chief Executive Officer and
will act as both Chief Executive Officer and Chief Operating Officer. If,
during the existence of a national emergency, the President and Chief
Operating Officer becomes incapacitated or unavailable to perform the
duties of his office, the Chairman of the Board and Chief Executive
Officer is hereby designated also as President and Chief Operating Officer
and will act as both Chief Executive officer and Chief Operating Officer.
If both the Chairman of the Board and Chief Executive Officer and the
President and Chief Operating Officer are unable to perform the duties of
their offices, the senior available officer of the Corporation is hereby
designated as Chairman of the Board and Chief Executive officer and
President and Chief Operating Officer, the seniority of such officer to be
determined in order of rank of office and within the same rank by the date
on which he or she was first elected or appointed to such office.
Section 5. Substitute Directors. To the extent required to
constitute a quorum at any meeting of the Board of Directors during a
national emergency, the officers of the Corporation who are present shall
be deemed, in order of rank of office and within the same rank in order of
election or appointment of such offices, directors for such meeting.