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BY-LAWS
OF
MUELLER INDUSTRIES, INC.
(RESTATED AS OF NOVEMBER 10, 1994)
ARTICLE I
Offices
The registered office of the Corporation shall be in the City of Dover,
County of Kent, State of Delaware. The Corporation also may have offices at
such other places, within or without the State of Delaware, as the Board of
Directors determines from time to time or the business of the Corporation
requires.
ARTICLE II
Meetings of Stockholders
Section 1. Place of Meetings, etc. Except as otherwise provided in
these By-laws, all meetings of the stockholders shall be held at such dates,
times and places, within or without the State of Delaware, as shall be
determined by a majority of the Entire Board of Directors (as hereinafter
defined) and as shall be stated in the notice of the meeting or in waivers of
notice thereof. If the place of any meeting is not so fixed, it shall be held
at the registered office of the Corporation in the State of Delaware.
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Section 2. Annual Meeting. The annual meeting of stockholders for the
election of directors and the transaction of such other business as properly
may be brought before the meeting shall be held on such date after the close
of the Corporation's fiscal year, as a majority of the Entire Board of
Directors may from time to time determine.
Section 3. Special Meetings. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Chairman or the President and
shall be called by the Chairman upon the written request of a majority of the
Entire Board of Directors. The request shall state the date, time, place and
purpose or purposes of the proposed meeting.
Section 4. Notice of Meetings. Except as otherwise required or
permitted by law, whenever the stockholders are required or permitted to take
any action at a meeting, written notice thereof shall be given, stating the
place, date and time of the meeting and, unless it is the annual meeting, by
or at whose direction it is being issued. The notice also shall designate the
place where the stockholders' list is available for examination, unless the
list is kept at the place where the meeting is to be held. Notice of a
special meeting also shall state the purpose or purposes for which the meeting
is called. A copy of the notice of any meeting shall be delivered personally
or shall be mailed, not less than ten (10) nor more than sixty (60) days
before the date of the meeting, to each stockholder or
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record entitled to vote at the meeting. If mailed, the notice shall be given
when deposited in the United States mail, postage prepaid, and shall be
directed to each stockholder at his address as it appears on the record of
stockholders, unless he shall have filed with the Secretary of the Corporation
a written request that notices to him be mailed to some other address, in
which case it shall be directed to him at the other address. Notice of any
meeting of stockholders shall not be required to be given to any stockholder
who shall attend the meeting, except for the express purpose of objecting at
the beginning thereof to the transaction of any business because the meeting
is not lawfully called or convened, or who shall submit, either before or
after the meeting, a signed waiver of notice. Unless the Board of Directors,
after the adjournment, shall fix a new record date for an adjourned meeting or
unless the adjournment is for more than thirty (30) days, notice of an
adjourned meeting need not be given if the place, date and time to which the
meeting shall be adjourned is announced at the meeting at which the
adjournment is taken.
Section 5. Quorum. Except as otherwise provided by law or by the
Certificate of Incorporation of the Corporation, at all meetings of
stockholders the holders of a majority of the outstanding shares of the
Corporation entitled to vote at the meeting shall be present in person or by
proxy in order to constitute a quorum for the transaction of business.
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Section 6. Voting. Except as otherwise provided by the Certificate of
Incorporation of the Corporation, at any meeting of the stockholders every
stockholder of record having the right to vote thereat shall be entitled to
one vote for every share of stock standing in his name as of the record date
and entitling him to so vote. A stockholder may vote in person or by proxy.
Except as otherwise provided by law or by the Certificate of Incorporation of
the Corporation, any corporate action to be taken by a vote of the
stockholders, other than the election of directors, shall be authorized by not
less than a majority of the votes cast at a meeting by the stockholders
present in person or by proxy and entitled to vote thereon. Directors shall
be elected as provided in Section 2 of Article III of these By-laws. Written
ballots shall not be required for voting on any matter unless ordered by the
Chairman of the meeting.
Section 7. Proxies. Every proxy shall be executed in writing by the
stockholder or by his attorney-in-fact.
Section 8. List of Stockholders. At least ten (10) days before every
meeting of stockholders, a list of the stockholders (including their
addresses) entitled to vote at the meeting and their record holdings as of the
record date shall be open for examination by any stockholder, during ordinary
business hours, at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not
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so specified, at the place where the meeting is to be held. The list also
shall be kept at and throughout the meeting.
Section 9. Conduct of Meetings. At each meeting of the stockholders,
the Chairman of the Board of Directors along with the President, or either of
them acting individually in the event of the absence of the President or
Chairman or, in their absence, one of the Vice Chairman, if any, shall act as
Chairmen or Chairman of the meeting. The Secretary or, in his absence, any
person appointed by the Chairmen or Chairman of the meeting shall act as
Secretary of the meeting and shall keep the minutes thereof. The order of
business at all meetings of the stockholders shall be as determined by the
Chairmen or Chairman of the meeting.
Section 10. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the Certificate of Incorporation of the Corporation, any
action which may be taken at any annual or special meeting of stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed, in
person or by proxy, by the holders of outstanding stock having not less than
the minimum number of votes that would be necessary to authorize or take the
action at a meeting at which all shares entitled to vote thereon were present
and voted in person or by proxy. Prompt notice of the taking of the corporate
action without a meeting by less than unanimous written consent shall be
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given to those stockholders who have not consented in writing, but who were
entitled to vote on the matter.
Section 11. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders. (1) Nominations of persons
for election to the Board of Directors and the proposal of business to be
considered by the stockholders may be made at an annual meeting of
stockholders (a) pursuant to the Corporation's notice of meeting delivered
pursuant to Article II, Section 4 of these By-Laws, (b) by or at the direction
of the Board of Directors or (c) by any stockholder of the Corporation who is
entitled to vote at the meeting, who has complied with the notice procedures
set forth in clauses (2) and (3) of this paragraph (A) and the other
requirements of this Section 11 and who was a stockholder of record at the
time such notice was delivered to the Secretary of the Corporation.
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this Section 11, the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice shall be delivered to the Secretary of the Corporation at
the principal executive offices of the Corporation not less than sixty (60)
days nor more than ninety (90) days prior to the first anniversary of the
preceding year's annual meeting; provided, however, that in the event that the
date of
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the annual meeting is advanced by more than thirty (30) days or delayed by
more than sixty (60) days from such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the ninetieth
(90) day prior to such annual meeting and not later than the close of business
on the later of the sixtieth (60) day prior to such annual meeting or the
tenth (10) day following the day on which public announcement of the date of
such meeting is first made. Such stockholder's notice shall set forth (a) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director all information relating to such person that is
required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934 (the "Exchange Act") (including such
person's written consent to being named in the proxy statement as a nominee
and to serving as a director if elected), or any successor rule or regulation;
(b) as to any other business that the stockholder proposes to bring before the
meeting, a brief description of the business desired to be brought before the
meeting, the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and
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address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner and (ii) the class and number of shares of the
Corporation which are owned beneficially and of record by such stockholder and
such beneficial owner.
(3) Notwithstanding anything in the second sentence of
paragraph (A)(2) of this Section 11 to the contrary, in the event that the
number of directors to be elected to the Board of Directors is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the
Corporation at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this
Section 11 shall also be considered timely, but only with respect to nominees
for any new positions created by such increase, if it shall be delivered to
the Secretary of the Corporation at the principal executive offices of the
Corporation not later than the close of business on the tenth (10) day
following the day on which such public announcement is first made by the
Corporation.
(B) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation's notice of meeting pursuant to
Article II, Section 3 of these By-Laws. Nominations of persons for election
to the Board of Directors may be made at a special meeting of
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stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of the Corporation who is entitled to vote
at the meeting, who has complied with the notice procedures set forth in this
Section 11 and who was a stockholder of record at the time such notice was
delivered to the Secretary of the Corporation. Nomination by stockholders of
persons for election to the Board of Directors may be made at such a special
meeting of stockholders if the stockholder's notice required by paragraph
(A)(2) of this Section 11 shall have been delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the ninetieth
(90) day prior to such special meeting and not later than the close of
business on the later of the sixtieth (60) day prior to such special meeting
or the tenth (10) day following the day on which public announcement is first
made of the date of the special meeting.
(C) General. (1) Only persons who are nominated in accordance
with the procedures set forth in this Section 11 shall be eligible to serve as
directors and only such business shall be conducted at a meeting of
stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 11. Except as otherwise provided by
law, the Certificate of Incorporation, as amended, or these By-Laws, the
chairman of the meeting shall have the power and duty to
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determine whether a nomination or any business proposed to be brought before
the meeting was made in accordance with the procedures set forth in this
Section 11 and, if any proposed nomination or business is not in compliance
with this Section 11, to declare that such defective proposal or nomination
shall be disregarded.
(2) For purposes of this by-Law, "public announcement" shall
mean disclosure in a press release reported by the Dow Jones News Service,
Associated Press or comparable national news service or in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this Section
11, a stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the
matters set forth in this Section 11. Nothing in this Section 11 shall be
deemed to affect any rights of stockholders to request inclusion of proposals
in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange
Act.
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ARTICLE III
Board of Directors
Section 1. Number of Board Members. The Board of Directors shall
consist of one (1) or more members. Until such time as the Board of Directors
determines otherwise, the number of directors shall be nine (9). The number
of directors may be reduced or increased from time to time by resolution of a
majority of the Entire Board of Directors, but no decrease may shorten the
term of an incumbent director. When used in these By-laws, the phrase "Entire
Board of Directors" means the total number of directors which the Corporation
would have if there were no vacancies.
Section 2. Election and Term. Except as otherwise provided by law or by
these By-laws, the directors shall be elected at the annual meeting of the
stockholders and the persons receiving a plurality of the votes cast shall be
so elected. Subject to his earlier death, resignation or removal as provided
in Section 3 of this Article III, each director shall hold office until his
successor shall have been duly elected and shall have qualified.
Section 3. Removal. A director may be removed, but only with cause, by
action of a majority of the Entire Board of Directors or the stockholders.
Section 4. Resignations. Any director may resign at any time by giving
written notice of his resignation to the Corporation. A resignation shall
take effect at the time
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specified therein or, if the time when it shall become effective shall not be
specified therein, immediately upon its receipt, and, unless otherwise
specified therein, the acceptance of a resignation shall not be necessary to
make it effective.
Section 5. Vacancies. Any vacancy in the Board of Directors arising
from an increase in the number of directors or otherwise may be filled by the
vote of a majority of the remaining directors on the Board of Directors.
Subject to his earlier death, resignation or removal as provided in Section 3
of this Article III, each director so elected shall hold office until his
successor shall have been duly elected and shall have qualified or for the
unexpired term of his predecessor, as the case may be.
Section 6. Place of Meetings. Except as otherwise provided in these By-
laws, all meetings of the Board of Directors shall be held at such places,
within or without the State of Delaware, as the Board of Directors determines
from time to time.
Section 7. Annual Meeting. The annual meeting of the Board of Directors
shall be held either (a) without notice immediately after the annual meeting
of stockholders and in the same place, or (b) as soon as practicable after the
annual meeting of stockholders on such date and at such time and place as the
Board of Directors determines.
Section 8. Regular Meetings. Regular meetings of the Board of Directors
shall be held on such dates and at such places and
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times as the Board of Directors determines. Notice of regular meetings need
not be given, except as otherwise required by law.
Section 9. Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors or the President of
the Corporation and shall be called by the Chairman of the Board of Directors,
the President or the Secretary upon the written request of a majority of the
Entire Board of Directors. The request shall state the date, time, place and
purpose or purposes of the proposed meeting.
Section 10. Notice of Meetings. Notice of each special meeting of the
Board of Directors (and of each annual meeting held pursuant to subdivision
(b) of Section 7 of this Article III) shall be given, not later than 48 hours
before the meeting is scheduled to commence, by the Chairman of the Board of
Directors, the President or the Secretary and shall state the place, date and
time of the meeting. Notice of each meeting may be delivered to a director by
hand or given to a director orally (whether by telephone or in person) or
mailed or telegraphed to a director at his residence or usual place of
business, provided, however, that if notice of less than 72 hours is given it
may not be mailed. If mailed, the notice shall be deemed to have been given
when deposited in the United States mail, postage prepaid, and if telegraphed,
the notice shall be deemed to have been given when the contents of the
telegram are transmitted to the telegraph service with instructions that the
telegram immediately
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be dispatched. Notice of any meeting need not be given to any director who
shall submit, either before or after the meeting, a signed waiver of notice or
who shall attend the meeting, except if such director shall attend for the
express purpose of objecting at the beginning thereof to the transaction of
any business because the meeting is not lawfully called or convened. Notice
of any adjourned meeting, including the place, date and time of the new
meeting, shall be given to all directors not present at the time of the
adjournment, as well as to the other directors unless the place, date and time
of the new meeting is announced at the adjourned meeting.
Section 11. Quorum. A majority of the Entire Board of Directors shall
constitute a quorum and be sufficient for the transaction of business, and any
act of a majority of the Entire Board of Directors at which a quorum is
present shall be the act of the Board of Directors.
Section 12. Conduct of Meetings. At each meeting of the Board of
Directors, the Chairman of the Board of Directors along with the President, or
either of them acting individually in the event of the absence of the Chairman
or the President or, in their absence, one of the Vice Chairmen shall act as
Chairmen or Chairman of the meeting. The Secretary or, in his absence, any
person appointed by the Chairmen or Chairman of the meeting shall act as
Secretary of the meeting and keep the minutes thereof. The order of business
at all meetings of the Board of Directors
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shall be as determined by the Chairmen or Chairman of the meeting.
Section 13. Committees of the Board. The Board of Directors, by
resolution adopted by a majority of the Entire Board of Directors, may
designate an executive committee and other committees, each consisting of one
(1) or more directors. Each committee (including the members thereof) shall
serve at the pleasure of the Board of Directors and shall keep minutes of its
meetings and report the same to the Board of Directors. The Board of
Directors shall initially have an Audit Committee, with the powers enumerated
in Section 14 hereof. The Board of Directors may designate one or more
directors as alternate members of any committee. Alternate members may
replace any absent or disqualified member or members at any meeting of a
committee. In addition, in the absence or disqualification of a member of a
committee, if no alternate member has been designated by the Board of
Directors, the members present at any meeting and not disqualified from
voting, whether or not they constitute 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.
Except as limited by law, each committee, to the extent provided in the
resolution establishing it, shall have and may exercise all the powers and
authority of the Board of Directors with respect to all matters.
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Section 14. Audit Committee. The Audit Committee shall consist of at
least two (2) members of the Board of Directors. The Audit Committee's powers
shall include, but shall not be limited to, the following: to make
recommendations to the Board of Directors regarding the appointment of the
Corporation's independent accountants; to review and approve any major changes
in accounting policy; to review the arrangements for, scope and results of the
independent audit; to review and approve the scope of non-audit services to be
performed by the Corporation's independent accountants and to consider the
possible effect on the independence of the accountants; to review the
effectiveness of the Corporation's internal auditing procedures and personnel;
to review the Corporation's policies and procedures for compliance with
disclosure requirements with respect to conflicts of interest and for
prevention of unethical, questionable or illegal payments; and to take such
other actions as the Board of Directors shall from time to time so authorize.
Section 15. Compensation Committee. The Compensation Committee shall
consist of at least two (2) members of the Board of Directors. The
Compensation Committee's powers shall include, but shall not be limited to the
following: to establish compensation policies, to recommend salary levels,
salary increases and bonus payments, to grant stock options, to provide an
overview of the Company's compensation programs and to take
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such other actions as the Board of Directors shall from time to time
authorize.
Section 16. Operation of Committees. A majority of all the members of a
committee shall constitute a quorum for the transaction of business, and the
vote of a majority of all the members of a committee present at a meeting at
which a quorum is present shall be the act of the committee.
Each committee shall adopt whatever other rules of procedure it
determines for the conduct of its activities.
Section 17. Consent to Action. Any action required or permitted to be
taken at any meeting of the Board of Directors or of any committee may be
taken without a meeting if all members of the Board of Directors or committee,
as the case may be, consent thereto in writing, and the writing or writings
are filed with the minutes of proceedings of the Board of Directors or
committee.
Section 18. Meetings Held Other Than in Person. Members of the Board of
Directors or any committee may participate in a meeting of the Board of
Directors or committee, as the case may be, 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 shall
constitute presence in person at the meeting.
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ARTICLE IV
Officers
Section 1. Executive Officers, etc. The executive officers of the
Corporation shall be a Chairman of the Board of Directors, a Chief Executive
Officer, a President, a Secretary and a Treasurer. The Board of Directors
also may elect or appoint one or more Vice Chairmen of the Board of Directors
(who, if so elected or appointed would be executive officers of the
Corporation), one or more Vice Presidents (any of whom may be designated as
Executive Vice Presidents or otherwise), or any other officers it deems
necessary or desirable for the conduct of the business of the Corporation,
each of whom shall have such powers and duties as the Board of Directors
determines. Any officer may devote less than one hundred percent (100%) of
his working time to his activities as such if the Board of Directors so
approves.
Section 2. Duties.
(a) The Chairman of the Board of Directors. The Chairman of the
Board of Directors shall perform, in the absence or disability of the Chief
Executive Officer, the duties and exercise the powers of the Chief Executive
Officer and shall have such other powers and duties as a majority of the
Entire Board of Directors or the Chief Executive Officer assigns to him,
including, if so assigned, general charge and control of the
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business and affairs of the Corporation. The Chairman of the Board of
Directors along with the President shall preside at all meetings of the
stockholders and the Board of Directors, and in the event of the absence of
the Chairman of the Board of Directors the President alone shall preside.
(b) The Vice Chairman of the Board of Directors. The Vice Chairman
or, if there shall be more than one, the Vice Chairmen, of the Board of
Directors shall, subject to the control of the Board of Directors, have such
powers and duties as the Chairman or a majority of the Entire Board of
Directors assigns to him. Notwithstanding the granting of powers to and
imposition of duties upon the Chairman of the Board of Directors and President
under this Article, whenever these By-laws grant powers or impose duties
jointly upon the Chairman or the President, those same powers are granted and
those same duties are imposed upon the Vice Chairman, or Vice Chairmen if
there shall be more than one.
(c) The President. The President shall be the chief operating
officer of the Corporation and shall have responsibility for the day-to-day
operation of the Corporation, subject to the control of the Chief Executive
Officer, the Chairman and the Vice Chairman or Vice Chairmen, if any, and he
shall have such other powers and duties as a majority of the Entire Board of
Directors assigns to him. The President along with the Chairman of the Board
of Directors shall preside at all
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meetings of the stockholders and the Board of Directors, and in the event of
the absence of the President, the Chairman alone shall preside.
(d) The Vice President. The Vice President or, if there shall be
more than one, the Vice Presidents, if any, in the order of their seniority or
in any other order determined by the Board of Directors, shall perform, in the
absence of disability of the President, the duties and exercise the powers of
the President and shall have such other powers and duties as the Chief
Executive Officer, the Chairman, the President, or a majority of the Entire
Board of Directors assigns to him or to them.
(e) The Secretary. Except as otherwise provided in these By-laws
or as directed by the Board of Directors, the Secretary shall attend all
meetings of the stockholders and the Board of Directors; he shall record the
minutes of all proceedings in books to be kept for that purpose; he shall give
notice of all meetings of the stockholders and special meetings of the Board
of Directors; and he shall keep in safe custody the seal of the Corporation
and, when authorized by the Board of Directors, he shall affix the same to any
corporate instrument. The Secretary shall have such other powers and duties
as the Board of Directors assigns to him.
(f) The Treasurer. Subject to the control of the Board of
Directors, the Treasurer shall have the care and custody
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of the corporate funds and the books relating thereto; he shall perform all
duties incident to the office of Treasurer; and he shall have such other
powers and duties as the Board of Directors assigns to him.
(g) Chief Executive Officer. Subject to the control of the Board
of Directors, the Chief Executive Officer shall have general charge and
control of the business and affairs of the Corporation.
Section 3. Election; Removal. Subject to his earlier death, resignation
or removal as hereinafter provided, each officer shall hold his office until
his successor shall have been duly elected and shall have qualified. Any
officer may be removed at any time, with or without cause, by a majority of
the Entire Board of Directors.
Section 4. Resignations. Any officer may resign at any time by giving
written notice of his resignation to the Corporation. A resignation shall
take effect at the time specified therein or, if the time when it shall become
effective shall not be specified therein, immediately upon its receipt, and,
unless otherwise specified therein, the acceptance of a resignation shall not
be necessary to make it effective.
Section 5. Vacancies. If an office becomes vacant for any reason, a
majority of the Entire Board of Directors may fill the vacancy, and each
officer so elected shall serve for the remainder of his predecessor's term.
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ARTICLE V
Provisions Relating to Stock
Certificates and Stockholders
Section 1. Certificates. Certificates for the Corporation's capital
stock shall be in such form as required by law and as approved by the Board of
Directors. Each certificate shall be signed in the name of the Corporation by
the Chairman, a Vice Chairman, the President or any Vice President and by the
Secretary, the Treasurer or any Assistant Secretary or any Assistant Treasurer
and shall bear the seal of the Corporation or a facsimile thereof. If any
certificate is countersigned by a transfer agent or registered by a registrar,
other than the Corporation or its employees, the signature of any officer of
the Corporation may be a facsimile signature. In case any officer, transfer
agent or registrar who shall have signed or whose facsimile signature was
placed on any certificate shall have ceased to be such officer, transfer agent
or registrar before the certificate shall be issued, it may nevertheless be
issued by the Corporation with the same effect as if he were such officer,
transfer agent or registrar at the date of issue.
Section 2. Lost Certificates, etc. The Corporation may issue a new
certificate for shares in place of any certificate theretofore issued by it,
alleged to have been lost, mutilated, stolen or destroyed, and the Board of
Directors may require the
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owner of the lost, mutilated, stolen or destroyed certificate, or his legal
representatives, to make an affidavit of that fact and to give the Corporation
a bond in such sum as it may direct as indemnity against any claim that may be
made against the Corporation on account of the alleged loss, mutilation, theft
or destruction of the certificate or the issuance of a new certificate.
Section 3. Transfers of Shares. Transfers of shares shall be registered
on the books of the Corporation maintained for that purpose after due
presentation of the stock certificates therefore appropriately endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer.
Section 4. Record Date. For the purpose of determining the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, or to express consent to or dissent from any proposal
without a meeting, or for the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or the allotment of any
rights, or for the purpose of any other 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 any such meeting, nor more than
sixty (60) days prior to any other action.
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ARTICLE VI
INDEMNIFICATION
Section 1. Indemnification. The Corporation shall, to the fullest
extent permitted by the General Corporation Law of the State of Delaware, as
the same exists or may be hereafter amended or supplemented, or by any
successor thereto, indemnify any and all persons whom it shall have power to
indemnify under said Law from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said Law. Such
right of indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person. No director shall have
any personal liability to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that this
provision shall not eliminate or limit the liability of any director: a) for
any breach of the director's duty of loyalty to the Corporation or its
stockholders, b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, c) under Section 174 of
the Delaware General Corporation Law, or d) for any transaction from which the
director derived an improper personal benefit. Such right of indemnification
shall continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the
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benefit of the heirs, executors and administrators of such person. The
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those seeking indemnification may be entitled under the
Certificate of Incorporation of the Corporation, any agreement, vote of
stockholders or disinterested directors or otherwise.
Section 2. Insurance. The Corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the Corporation would
have the power to indemnify him against such liability under the provisions of
Section 1 of the By-laws or under Section 145 of the General Corporation Law
or any other provision of law.
ARTICLE VII
General Provisions
Section 1. Dividends, etc. To the extent permitted by law, the Board of
Directors shall have full power and discretion, subject to the provisions of
the Certificate of Incorporation of the Corporation and the terms of any other
corporate document or
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instrument binding upon the Corporation, to determine what, if any, dividends
or distributions shall be declared and paid or made.
Section 2. Seal. The Corporation's seal shall be in such form as is
required by law and as shall be approved by the Board of Directors.
Section 3. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 4. Voting Shares in Other Corporations. Unless otherwise
directed by the Board of Directors, shares in other Corporations which are
held by the Corporation shall be represented and voted only by the Chairman of
the Board of Directors or the President or by a proxy or proxies appointed by
either of them acting individually.
ARTICLE VIII
Amendments
By-laws may be adopted, amended or repealed by a majority of the Entire
Board of Directors, subject to the right of the stockholders to adopt, amend
or repeal any By-law made by a majority of the Entire Board of Directors.