Exhibit 3(b)
AMENDED AND RESTATED
BY-LAWS
OF
WOLVERINE WORLD WIDE, INC.
ARTICLE I
OFFICES
Section 1. The corporation's principal office shall be in the City
of Rockford, County of Kent, State of Michigan.
Section 2. The corporation's principal office and place of business
in Delaware shall be its registered office in Delaware as set forth in the
Certificate of Incorporation.
Section 3. The corporation may also have offices at such other
places, both within and without the States of Michigan and Delaware as the
Board of Directors may from time to time determine or the business of the
corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
Section 1. All meetings of the stockholders shall be held, except
as otherwise provided by statute or these By-Laws, at such time and place
as may be fixed from time to time by the Board of Directors. Meetings of
stockholders may be held 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.
Section 2. Annual meetings of the stockholders shall be held each
year at such time and on such business day in the month of April as may be
designated by the Board of Directors, or if no such designation is made, at
10:00 a.m. local time on the last Thursday in April, or if that day is a
legal holiday, then on the next succeeding business day at such time as
shall be stated in the notice of the meeting. Annual meetings shall be
held to elect by a plurality vote successors to those members of the Board
of Directors whose terms expire at the meeting and to transact only such
other business as may be properly brought before the meeting in accordance
with these By-Laws.
To be properly brought before the meeting, business must be either
(a) specified in the notice of meeting (or any supplement thereto) given
by or at the direction of the Board, (b) otherwise properly brought before
the meeting by or at the direction of the Board, or (c) otherwise properly
brought before the meeting by a stockholder. In addition to any other
applicable requirements, for business to be properly brought before an
annual meeting by a stockholder, the stockholder must have given timely
notice thereof in writing to the Secretary of the corporation. To be
timely, a stockholder's notice must be delivered to or mailed and received
at the principal executive offices of the corporation, not less than 50
days nor more than 75 days prior to the meeting; provided, however, that in
the event that less than 65 days' notice or prior public disclosure of the
date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the 15th day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure was made,
whichever first occurs. A stockholder's notice to the Secretary shall set
forth as to each matter the stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired to be brought
before the annual meeting, (ii) the name and record address of the
stockholder proposing such business, (iii) the class and number of shares
of the corporation which are beneficially owned by the stockholder, and
(iv) any material interest of the stockholder in such business.
Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 2 of Article II, provided, however,
that nothing in this Section 2 of Article II shall be deemed to preclude
discussion by any stockholder of any business properly brought before the
annual meeting.
The Chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 2 of
Article II, and if he should so determine, he shall so declare to the
meeting and any such business not properly brought before the meeting shall
not be transacted.
Section 3. Special meetings of the stockholders may be called by the
Board of Directors, or by the Chief Executive Officer, or upon the written
request of stockholders holding in the aggregate at least forty (40)
percentum of the issued and outstanding capital stock of the corporation
entitled to vote on the business to be transacted at such meeting,
delivered to such officer. Such stockholder request shall state the
purpose or purposes of the proposed meeting. The meetings shall be held on
a date fixed by the Board of Directors or the Chief Executive Officer, or
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in the case of a stockholder request, on a date determined by the
Secretary. In the event the Secretary questions the propriety of any
meeting requested by stockholders, such request shall be submitted to the
Board of Directors at its next meeting, and the determination of the Board
as to such propriety shall be final. No special meeting of stockholders
shall be called for the purpose of removing a director or directors, for
electing directors, or for amending the By-Laws of the corporation, such
matters to be considered only at the annual meeting of stockholder,
PROVIDED, HOWEVER, that a special meeting of stockholders may be called for
the purpose of removing a director for cause, such term to be as defined
under Delaware law, provided further that such cause is set forth in the
request for meeting.
Section 4. Written notice of all meetings of stockholders, stating
the time, place and in the case of special meetings, the purpose or
purposes thereof, shall be given to each stockholder entitled to vote
thereat, at least ten (10) days before the date fixed for the meeting.
Section 5. The officer who has charge of the stock ledger of the
corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to
vote at the meeting, arranged in alphabetical order, showing 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, for any purpose
germane to the meeting, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting, either at a place within the city
where the meeting is to be held and which place shall be specified in the
notice of the meeting, or, if not so specified, at the place where said
meeting is to be held, and the list shall be produced and kept at the time
and place of the meeting during the whole time thereof, and may be
inspected by any stockholder who is present.
Section 6. 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 provide 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 officer of
the corporation presiding as chairman of the meeting shall have the 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 meetings at which a quorum shall be present
or represented, any business may be transacted which might have been
transacted at the meeting as originally notified.
Section 7. Except as otherwise set forth in Section 1(f) of Article
III hereunder, 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
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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.
Section 8. Except as otherwise provided by the Certificate of
Incorporation or the resolution or resolutions of the Board of Directors
creating any class of stock, each stockholder shall at every meeting of the
stockholders be entitled to one vote in person or by proxy for each share
of the capital stock having voting power held by such stockholder.
Section 9. Meetings of stockholders generally shall follow accepted
rules of parliamentary procedure, subject to the following:
(a) The chairman of the meeting shall have absolute authority
over matters of procedure, and there shall be no appeal from the
ruling of the chairman. If, in his absolute discretion, the chairman
deems it advisable to dispense with the rules of parliamentary
procedure as to any one meeting of stockholders or part thereof, he
shall so state and shall clearly state the rules under which the
meeting or appropriate part thereof shall be conducted.
(b) If disorder should arise which prevents the continuation
of the legitimate business of the meeting, the chairman may quit the
chair and announce the adjournment of the meeting; and upon his so
doing, the meeting is immediately adjourned.
(c) The chairman may ask or require that anyone not a bona
fide stockholder or proxy leave the meeting.
(d) A resolution or motion shall be considered for vote only
if proposed by a stockholder or a duly authorized proxy and
seconded by a stockholder or a duly authorized proxy other than the
individual who proposed the resolution or motion.
Section 10. At or prior to any meeting of stockholders, the Board
of Directors, or, if the Board of Directors shall have taken no action with
respect thereto, the chairman of the meeting, may appoint one or more
inspectors to act at the meeting or any adjournment thereof. In case any
person appointed as inspector fails to appear or act, the vacancy may be
filled by appointment made by the person presiding at the meeting or
entitled to preside at the adjourned meeting. Each inspector, before
entering upon the discharge of his duties, shall take and sign an oath
faithfully to execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability.
Section 11. The Secretary of the corporation shall furnish the
inspectors with a certificate setting forth the number of shares
outstanding and entitled to vote, the voting power of each, the number of
shares required to make a quorum and the number of shares required to be
voted on any issue presented to the meeting if more than a simple majority
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of the quorum present. The inspectors shall determine the shares
represented at the meeting, the existence of a quorum, the validity and
effect of proxies, and shall receive votes, ballots or consents, hear and
determine all challenges and questions arising in connection with the right
to vote, count and tabulate all votes, ballots or consents, determine the
results and do such acts as are proper to conduct the election or vote with
fairness to all shareholders. On request of the person presiding at the
meeting or any shareholder entitled to vote thereat, the inspectors shall
make a report in writing of any challenge, question or matter determined by
them. The inspectors shall execute a certificate of the results of the
election or vote found by them. Any report or certificate made by them
shall be prima facie evidence of the facts stated and of the vote as
certified by them. In their determination of the validity and effect of
proxies, the inspectors shall make such determination, to the extent
possible, so as not to disenfranchise any stockholder.
Section 12. The inspectors may employ agents or other persons to
assist in their duties. The meetings of the inspectors shall be closed
to all persons except as may be requested by the inspectors, provided that
the inspectors shall permit a reasonable time after their initial
tabulations for the presentation and determination of challenges to the
validity and effect of proxies and ballots. In the case of an election
contest, whenever the representative of one or more sides is present
during the course of the inspectors' duties, a representative of all
other sides shall be afforded the opportunity to attend.
Section 13. In the tabulation of votes cast by proxies, it shall
not be necessary for proxies to execute a ballot on matters, voting
instructions (including no vote) for which are contained on the form of
proxy itself, and in the absence of a ballot executed on such proxies, the
proxy itself will be deemed a written ballot and tabulated in accordance
with the directions contained thereon.
Section 14. The person presiding at a meeting of the stockholders
may close the polls after the request for submission of proxies and ballots,
upon the temporary adjournment of the meeting called to tabulate the
proxies and ballots, or within a reasonable time thereafter. After the
polls are closed, no proxy, revocation of proxy or ballot shall be accepted
by or considered in the tabulation of proxies and ballots.
Section 15. In the event it becomes necessary to adjourn a meeting
of stockholders beyond the day of the scheduled meeting in order to
determine the results of any election or vote, said meeting may be
adjourned from time to time by the person presiding or entitled to preside,
with such meeting to be reconvened at the principal offices of the
corporation in Rockford, Michigan. The only matter to be acted upon at
such reconvened meeting shall be the acceptance and filing of the report
from the inspectors of election.
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ARTICLE III
DIRECTORS
Section 1. Directors of the corporation shall be elected,
replaced and removed as follows:
(a) Number and Qualification of Directors. The number of
directors which shall constitute the whole Board of Directors shall be
not less than five (5) persons. Subject to the limit above specified,
the number of directors shall be determined from time to time by
resolution of the Board of Directors, provided that a vacancy in the
Board of Directors need not be filled immediately, and until filled,
such lesser number shall constitute the entire Board of Directors.
Except as otherwise provided in this Section, directors shall be
elected at the annual meeting of the stockholders, and each such
director elected shall hold office until the annual meeting for the
year in which his or her term expires and until his or her successor
is elected. A director need not be a stockholder, a citizen of the
United States or a resident of the State of Delaware.
(b) Classification. The Board of Directors shall be divided
into three classes, Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total
number of directors constituting the entire Board of Directors. At
the 1990 annual meeting of stockholders, Class I directors shall be
elected for a one- year term, Class II directors for a two-year term
and Class III directors for a three-year term. At each succeeding
annual meeting of stockholders, the successors of the class of
directors whose term expires at that meeting shall be elected to hold
office for a term expiring at the annual meeting of stockholders held
in the third year following the year of their election.
Notwithstanding the foregoing, whenever the holders of any one or more
classes or series of preferred stock shall have the right, voting
separately as a class, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of
vacancies and other features of such directorships shall be governed
by the terms of the Certificate of Incorporation applicable thereto,
and such directors shall not be divided into classes pursuant to this
Section 1(b) of ARTICLE III, and the number of such directors shall
not be counted in determining the maximum number of directors
permitted under Section 1(a) of ARTICLE III hereof, in each case
unless expressly provided by the Certificate of Incorporation.
(c) Vacancies and Newly Created Directorships. Subject to
the right of the holders of any series of preferred stock then
outstanding, any vacancy occurring in the Board of Directors caused
by resignation, removal, death, disqualification or other incapacity,
and any newly created directorships resulting from an increase in the
number of directors, shall be filled exclusively by a majority vote of
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the directors then in office, whether or not a quorum and shall not be
filled by the stockholders. When the number of directors is changed,
any newly created or eliminated directorship shall be so apportioned
among the classes of directors as to make all classes as nearly equal
in number as possible. Each director chosen to fill a vacancy or a
newly created directorship shall hold office for the term coinciding
with the class of his or her directorship and until his successor
shall be elected and qualify. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
(d) Removal. Subject to the rights of the holders of any
series of preferred stock then outstanding, any or all of the
directors may be removed from office at any time, but only for cause.
(e) Resignation. Any director may resign at any time and such
resignation shall take effect upon receipt thereof by the Chief
Executive Officer or the Secretary unless otherwise specified in the
resignation.
(f) Amendment or Repeal. Notwithstanding any other provision
of these By-Laws to the contrary, the provisions contained in this
Section 1 shall not be amended, altered, modified or repealed, and no
provision inconsistent with this Section 1 may be adopted, except upon
either (i) the affirmative vote of the holders of not less than two-
thirds of the outstanding stock of the corporation entitled to vote in
elections of directors or (ii) the affirmative vote of a majority of
the whole Board of Directors and the affirmative vote of the holders
of a majority of such outstanding stock present in person or
represented by proxy at any meeting of stockholders.
(g) Nomination of Directors. Subject to the rights of
holders of any classes or series of preferred stock then outstanding,
only persons who are nominated in accordance with the following
procedures shall be eligible for election as Directors. Nomination
of persons for election to the Board of the corporation at an annual
meeting may be made at the annual meeting of stockholders by or at
the direction of the Board of Directors by any nominating committee
or person appointed by the Board or by any stockholder of the
corporation entitled to vote for the election of Directors at the
annual meeting who complies with the notice procedures set forth in
this Section 1(g) of Article III. Such nominations, other than those
made by or at the direction of the Board, shall be made pursuant to
timely notice in writing to the Secretary of the corporation. To be
timely, a stockholder's notice shall be delivered to or mailed and
received at the principal executive offices of the corporation not
less than 50 days nor more than 75 days; provided, however, that in
the event that less than 65 days' notice or prior public disclosure
of the date of an annual meeting is given or made to stockholders,
notice by the stockholder to be timely must be so received not later
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than the close of business on the 15th day following the day on which
such notice of the date of the meeting was mailed or such public
disclosure was made, whichever first occurs. Such stockholder's notice
to the Secretary shall set forth (a) 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
the person, (ii) the principal occupation or employment of the person,
(iii) the class and number of shares of capital stock of the corporation
which are beneficially owned by the person and (iv) any other
information relating to the person that is required to be disclosed
in solicitations for proxies for election of Directors pursuant to Rule
14a under the Securities Exchange Act of 1934, as amended; and (b) as
to the stockholder giving the notice (i) the name and record address
of stockholder and (ii) the class and number of shares of capital
stock of the corporation which are beneficially owned by the
stockholder. The corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the
corporation to determine the eligibility of such proposed nominee to
serve as Director of the corporation. No person shall be eligible for
election as a Director of the corporation unless nominated in
accordance with the procedures set forth herein.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that a nomination was not made
in accordance with the foregoing procedure, and if he should so
determine, he shall so declare to the meeting and the defective
nomination shall be disregarded.
Section 2. The business of the corporation shall be managed by its
Board of Directors, which may exercise all such 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 or required to
be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 3. The Board of Directors of the corporation may hold
meetings, both regular and special, either within or without the State of
Delaware.
Section 4. The first meeting of each newly elected Board of Directors
shall be held following the annual meeting of stockholders, and no notice
of such meeting shall be necessary to the newly elected directors in order
legally to constitute the meeting, provided a quorum shall be present. In
the event such meeting is not held immediately following the annual meeting
of stockholders, the meeting may be held at such time and place as shall be
specified in a notice given as hereinafter provided for special meetings of
the Board of Directors, or as shall be specified in a written waiver signed
by all of the directors.
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Section 5. Regular meetings of the Board of Directors may be held
without notice at such time and at such place as shall from time to time be
determined by the Board.
Section 6. Special meetings of the Board may be called by the Chief
Executive Officer or Secretary or by any two (2) directors on two (2) days'
notice to each director. Neither the business to be transacted at nor the
purpose of any regular or special meeting of the Board of Directors need be
specified in the notice of such meeting.
Section 7. At all meetings of the Board a majority of the directors
(other than directors elected at that meeting) shall constitute a quorum
for the transaction of business, and the act of a majority of the directors
present at any meeting at which there is a quorum shall be the act of the
Board of Directors, except as may be otherwise specifically provided by
statute, the Certificate of Incorporation or these By-Laws. If a quorum
shall not be present at any meeting of the Board of Directors, the
directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall
be present.
Section 8. Unless otherwise restricted by the Certificate of
Incorporation or these By-Laws, 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 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 9. The Board of Directors or any committee designated by the
Board of Directors may participate in a meeting of such Board, or
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 participation in a meeting pursuant to this section
shall constitute presence in person at such meeting.
COMMITTEES OF DIRECTORS
Section 10. The Board of Directors may appoint an Executive Committee
whose membership shall consist of such members of the Board of Directors
as it may deem advisable from time to time to serve during the pleasure of
the Board. The Board of Directors may also appoint directors to serve as
alternates for members of the committee in the absence or disability of
regular members. The Board of Directors may fill any vacancies as they
occur. The Executive Committee shall have and may exercise the powers of
the Board of Directors in the management of the business affairs and
property of the corporation during the intervals between meetings of the
Board of Directors, subject to law and to such limitations and control as
the Board of Directors may impose from time to time, except that the
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Executive Committee shall not, without the express authorization of the
Board of Directors:
(a) Alter or amend the Certificate of Incorporation or the
By-Laws;
(b) Fill vacancies in the membership of the Board of Directors
or the Executive Committee;
(c) Declare dividends;
(d) Authorize the issuance of stock.
Section 11. The Board of Directors may designate such other
committees as it may deem appropriate, and such committees shall exercise
the authority delegated to them.
Section 12. Each committee provided for above shall meet as often as
its business may require and may fix a day and time each week or at other
intervals for regular meetings, notice of which shall not be required.
Whenever the day fixed for a meeting shall fall on a holiday, the meeting
shall be held on the business day following or on such other day as the
committee may determine. Special meetings of the committees may be called
by the chairman, and notice thereof may be given to the members by
telephone, telegram or letter. A majority of its members shall constitute
a quorum for the transaction of the business of any of the committees. A
record of the proceedings of each committee shall be kept and presented to
the Board of Directors.
COMPENSATION OF DIRECTORS
Section 13. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a
fixed sum for attendance at each meeting of the Board of Directors and a
stated salary as director. No such payment shall preclude any director
from serving the corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be
allowed like compensation for attending committee meetings.
CONSENT OF STOCKHOLDERS IN LIEU OF MEETING
Section 14. In order that the corporation may determine the
stockholders entitled to consent to corporate action in writing without a
meeting, the Board of Directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date
is adopted by the Board of Directors, and which date shall not be more than
ten (10) days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. Any stockholders of record
seeking to have the stockholders authorize or take corporate action by
written consent shall, by written notice to the Secretary, request the
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Board of Directors to fix a record date. The Board of Directors shall
promptly, but in all events within ten (10) days after the date on which
such a request is received, adopt a resolution fixing the record date. If
no record date has been fixed by the Board of Directors within ten (10)
days following the receipt of such a request, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is
required by applicable law, shall be the first date on which a signed
written consent setting forth the action taken or proposed to be taken is
delivered to the corporation by delivery to its registered office in the
State of Delaware, its principal place of business, or an officer or agent
of the corporation having custody of the book in which proceedings of
stockholders meetings are recorded, to the attention of the Secretary of
the corporation. Delivery shall be by hand or by certified or registered
mail, return receipt requested. If no record date has been fixed by the
Board of Directors and prior action by the Board of Directors is required
by applicable law, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the
close of business on the date on which the Board of Directors adopts the
resolution taking such prior action.
ARTICLE IV
NOTICES
Section 1. Notices to directors and stockholders shall be in writing
and delivered personally or mailed to the directors or stockholders at
their addresses appearing on the books of the corporation. Notice by mail
shall be deemed to be given at the time when the same shall be mailed.
Notice to directors may also be given by telegram, which shall be deemed
given at the time when the same shall be sent.
Section 2. Whenever any notice is required to be given under the
provisions of the statutes or of the Certificate of Incorporation or by
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. The attendance of a director at a
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 because the meeting has not been lawfully
called or convened.
ARTICLE V
OFFICERS
Section 1. The officers of the corporation shall be chosen by the
Board of Directors at its first meeting after the annual meeting of
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stockholders, or as soon as practicable after the annual election of
directors in each year, and shall include a Chairman of the Board of
Directors, a Chief Executive Officer, a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice
Presidents, one or more Assistant Secretaries and Assistant Treasurers, and
such other officers as the Board of Directors may from time to time
determine. Any two or more offices, except those of Chief Executive
Officer and Vice President, or Chief Executive Officer and Secretary, may
be held by the same person.
Section 2. The Chairman of the Board of Directors, the Chief
Executive Officer and the President shall be selected from among the
members of the Board of Directors. No other officer need be a member of
the Board of Directors.
TERM OF OFFICE
Section 3. Each officer shall hold office at the pleasure of the
Board. The Board of Directors may remove any officer for cause or without
cause. Any officer may resign his or her office at any time, such
resignation to take effect upon receipt of written notice thereof by the
corporation unless otherwise specified in the resignation. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by
the Board.
THE CHAIRMAN OF THE BOARD
Section 4. The Chairman of the Board shall, when present, preside at
all meetings of the directors and stockholders. He or she shall have such
other duties and powers as may be imposed or given by the Board.
THE CHIEF EXECUTIVE OFFICER
Section 5. The Chief Executive Officer of the corporation shall have
general and active management of the business of the corporation, and shall
see that all orders and resolutions of the Board of Directors are carried
into effect.
Section 6. In the event of the absence of the Chairman of the Board,
the Chief Executive Officer shall preside at all meetings of the
stockholders and of the directors. Except as otherwise herein provided,
the Chief Executive Officer shall have the power, subject to the control of
the Board of Directors, to appoint or discharge and to prescribe the duties
and to fix the compensation of such agents and employees of the corporation
as he may deem necessary, including the power to make temporary suspensions
or appointments as officers of the corporation, such suspensions or
appointments to be made effective only until the next meeting of the Board
of Directors or the Executive Committee thereof. The Chief Executive
Officer shall be the medium of communication to the Board of all matters
presented for their consideration by persons other than the directors
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themselves. He or she shall be the direct representative of the Board of
Directors and, subject to the Board of Directors, shall have the final
control of the affairs and policy of the corporation. He or she shall be
the arbiter of all differences between officers of the corporation, and his
decision shall be final and binding, subject only to review by the Board of
Directors of the corporation. He or she shall do and perform such other
duties as may be assigned to him by the Board of Directors.
VICE PRESIDENTS
Section 7. Each Vice President shall have such title and powers and
perform such duties as may be assigned to him from time to time by the
Chief Executive Officer or the Board of Directors.
THE SECRETARY
Section 8. The Secretary shall attend all meetings of the Board and
of the stockholders and record all votes and the minutes of all proceedings
in a book to be kept for that purpose, and shall perform like duties for
committees when required. He or she shall give, or cause to be given,
notice of all meetings of the stockholders and meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the
Board of Directors or the Chief Executive Officer. He or she shall keep in
safe custody the seal of the corporation and shall have authority to affix
the same to all instruments where its use is required or appropriate.
THE TREASURER
Section 9. The Treasurer shall have the custody of the corporate
funds and securities, except as otherwise provided by the Board, and shall
cause to be kept full and accurate accounts of 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 designated by the Board of Directors. He or
she shall disburse the funds of the corporation as may be ordered by the
Board, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the directors, at the regular meetings of
the Board, or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the
corporation.
OTHER OFFICERS
Section 10. There may be elected one or more Assistant Secretaries
and Assistant Treasurers who may, in the absence, disability or nonfeasance
of the Secretary or Treasurer, perform the duties and exercise the powers
of such persons respectively.
Section 11. All other officers, as may from time to time be appointed
by the Board of Directors pursuant to this Article shall perform such
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duties and exercise such authority as the Board of Directors shall
prescribe.
Section 12. In the case of the absence of any officer, or for any
other reason that the Board may deem sufficient, the Chief Executive
Officer or the Board may delegate for the time being the powers or duties
of such officer to any other person.
EXECUTIVE OFFICERS
Section 13. The Chairman of the Board, Chief Executive Officer,
President, Vice President(s), Secretary and Treasurer shall be known as
executive officers and shall have all the usual powers and shall perform
all the usual duties incident to their respective offices, and shall in
addition perform such other duties as shall be assigned to them from time
to time by the Board of Directors.
OFFICER SALARIES
Section 14. The salaries of all corporate officers appointed by the
Board of Directors shall be fixed by the Compensation Committee of the
Board of Directors.
ARTICLE VI
SUBSIDIARIES AND DIVISIONS
Section 1. The Board of Directors or the Chief Executive Officer may,
as they shall deem necessary, designate certain individuals as divisional
officers. Any titles given to divisional officers may be withdrawn at any
time, with or without cause, by the Board of Directors or the Chief
Executive Officer. A divisional officer may, but need not be, a director
or an executive officer of the corporation. All divisional officers shall
perform such duties and exercise such authority as the Board of Directors
or the Chief Executive Officer shall prescribe.
Section 2. The Board of Directors or the Chief Executive Officer may
vote the shares of stock owned by the corporation in any subsidiary,
whether wholly or partly owned by the corporation, in such manner as they
may deem in the best interests of the corporation, including, without
limitation, for the election of directors of any such subsidiary
corporation, or for any amendments to the charter or by-laws of any such
subsidiary corporation, or for the liquidation, merger, or sale of assets
of any such subsidiary corporation. The Board of Directors or the Chief
Executive Officer may cause to be elected to the board of directors of any
such subsidiary corporation such persons as they shall designate, any of
whom may, but need not be, directors, executive officers, or other
employees or agents of the corporation. The Board of Directors or the
Chief Executive Officer may instruct the directors of any such subsidiary
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corporation as to the manner in which they are to vote upon any issue
properly coming before them as the directors of such subsidiary
corporation, and such directors shall have no liability to the corporation
as the result of any action taken in accordance with such instructions.
Section 3. Divisional officers, and the officers of any subsidiary
corporation, shall not, by virtue of holding such title and position, be
deemed to be officers of the corporation, nor shall any such divisional
officer or officer of a subsidiary corporation, unless he shall also be a
director or officer of the corporation, be entitled to have access to any
files, records or other information relating or pertaining to the
corporation, its business and finances, or to attend or receive the minutes
of any meetings of the Board of Directors or any committee of the
corporation, except as and to the extent authorized and permitted by the
Board of Directors or the Chief Executive Officer.
ARTICLE VII
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the corporation shall be entitled
to have a certificate, signed by, or in the name of the corporation by, the
Chief Executive Officer, President or a Vice President and the Treasurer or
an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation, certifying the number of shares owned by such stockholder in
the corporation.
Section 2. Where a certificate is signed (1) by a transfer agent or
an assistant transfer agent, or (2) by a transfer clerk acting on behalf of
the corporation and a registrar, the signature of any such Chief Executive
Officer, President, Vice President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be 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, it 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.
LOST CERTIFICATES
Section 3. The Board of Directors may direct a new certificate or
certificates to be issued in place of any certificate or certificates
theretofore issued by the corporation alleged to have been lost or
destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of such lost or destroyed certificate
or certificates, or his legal representative, to give the corporation a
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bond in such sum as it may direct as indemnity against any claim that may
be made against the corporation with respect to the certificate alleged to
have been lost or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the corporation or the transfer agent of
the corporation of a certificate for shares duly endorsed or 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.
RECORD DATES
Section 5. The Board of Directors may fix in advance a date, not
exceeding sixty (60) days, but not less than ten (10) days preceding the
date of any meeting of stockholders, or the date for 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.
REGISTERED STOCKHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive rights of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, 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 the State of Delaware.
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ARTICLE VIII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the corporation,
subject to the provisions of the Certificate of Incorporation, if any, 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 the capital stock, subject to the provisions of the Certificate of
Incorporation.
Section 2. Before payment of any dividend, there may be set aside out
of any funds in the corporation, available for dividends such sum or sums
as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation,
or for such other purpose as the directors shall think conducive to the
interest of the corporation, and the directors may modify or abolish any
such reserve in the manner in which it was created.
CHECKS
Section 3. 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 4. The fiscal year of the corporation shall be fixed by
resolution of the Board of Directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name
of the corporation, 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.
VOTING SECURITIES
Section 6. Unless otherwise directed by the Board, the Chief
Executive Officer shall have full power and authority on behalf of the
corporation to attend and to act and to vote, or to execute in the name or
on behalf of the corporation a proxy authorizing an agent or attorney-in-
fact for the corporation to attend and vote at any meetings of security
holders of corporations in which the corporation may hold securities, and
at such meetings the Chief Executive Officer or his or her duly authorized
agent or attorney-in-fact shall possess and may exercise any and all rights
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and powers incident to the ownership of such securities and which, as the
owner thereof, the corporation might have possessed and exercised if
present. The Board by resolution from time to time may confer like power
upon any other person or persons.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may be amended, altered, changed, added to
or repealed at any regular meeting of the stockholders or of the Board of
Directors or at any special meeting of the Board of Directors.
ARTICLE X
INDEMNIFICATION
The Corporation shall, to the fullest extent permitted by Section 145
of the General Corporation Law of Delaware, as the same may be amended and
supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities or other matters referred to in or covered by said section, and
the indemnification provided for herein shall not be deemed exclusive of
any other rights to which those indemnified 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 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.
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