Exhibit 99.2
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
)
ARMSTRONG WORLD INDUSTRIES, ) Chapter 11
INC., et al., ) Case No. 00-4471 (RJN)
) (Jointly Administered)
Debtors )
- ------------------------------------- )
EXHIBIT 1.14
AMENDED AND RESTATED BY-LAWS
FORM OF BYLAWS OF REORGANIZED ARMSTRONG (SEPT. 5, 2003)
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BYLAWS
of
ARMSTRONG WORLD INDUSTRIES, INC.
(A Pennsylvania corporation)
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As in effect on [________, 200_]
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ARTICLE I
Certain Definitions; Principal Office; Notices to the Corporation
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Section 1. Certain Definitions. Unless the context otherwise
requires, the following terms when used herein shall have the following
meanings:
(a) "ARTICLES" shall mean the articles of incorporation of the
Corporation, as from time to time amended and in effect in accordance with law,
and shall include any amendment determining the designation, voting rights,
preferences, limitations and special rights of Preferred Shares of the
Corporation made by the Board as permitted by law, as then in effect.
(b) "BENEFICIAL OWNERSHIP" shall have the same meaning as provided by
Regulation 13D-G under the Exchange Act, as from time to time in effect (and any
successor regulation).
(c) "BOARD" shall mean the Board of Directors of the Corporation as
constituted in accordance with Article III of the Bylaws.
(d) "BYLAWS" shall mean the Bylaws of the Corporation as from time to
time amended and in effect in accordance with law. References in the Bylaws to
"herein," "hereof" or "hereto," or any like reference, shall refer to the Bylaws
(as amended and in effect from time to time) as a whole and not to any specific
Article, Section, subsection, paragraph, sentence or clause of the Bylaws unless
explicitly provided.
(e) "CORPORATION" shall mean Armstrong World Industries, Inc., the
Pennsylvania corporation incorporated by the filing of articles of incorporation
with the Secretary of State of the Commonwealth of Pennsylvania on December 30,
1891.
(f) "EFFECTIVE TIME" shall mean the effective time of these bylaws as
provided by Article XI hereof.
(g) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended and as the same may be amended from time to time (and any successor
statute).
(h) "INDEPENDENT DIRECTOR" shall mean a director who (i) qualifies as
an "independent director" within the meaning of the corporate governance listing
standards from time to time adopted by the NYSE or Nasdaq, whichever market the
Common Shares are listed for trading on at the time (or, if at any time the
Common Shares are not listed for trading on either such market, as would be
applicable if the Common Shares were then listed on the NYSE) with respect to
the composition of the board of directors of a listed company (without regard to
any independence criteria applicable under such standards only to the members of
a committee of the board of directors) and (ii) also satisfies the minimum
requirements of director independence of Rule 10A-3(b)(1) under the Exchange Act
(as from time to time in effect), whether or not such director is a member of
the audit committee.
(i) "NYSE" shall mean the New York Stock Exchange.
(j) "NASDAQ" shall mean the Nasdaq Stock Market.
(k) "SUBSIDIARY" shall mean any company controlled, directly or
indirectly, by the Corporation.
(l) "WHOLE BOARD" shall mean the number of members of the Board at
any time if there were then no vacancies on the Board.
Section 2. Principal Office; Notices to the Corporation. The
principal office of the Corporation shall be at such location in Lancaster,
Pennsylvania as the Board of Directors shall from time to time determine. All
notices to the Corporation required or permitted by the Bylaws may be addressed
to the principal office of the Corporation and shall be marked to the attention
of the Secretary unless otherwise provided herein.
ARTICLE II
Shareholders' Meetings
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Section 1. Annual Meetings of Shareholders. An annual meeting of
shareholders shall be held in each year on such date and at such time as may be
set by the Board (or by an officer of the Corporation authorized to do so by the
Board) for the purpose of electing directors and the transaction of such other
business as may properly come before the meeting; provided, however, that (i)
this section shall not require an annual meeting of shareholders during calendar
year 2004 and (ii) an annual meeting of shareholders during calendar year 2005
shall be held not later than June 30, 2005. (1)
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(1) [This, and related, provisions may be modified in order to comply with
applicable listing standards as pertinent to the initial listing of the Common
Shares.]
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Section 2. Special Meetings of Shareholders. Special meetings of the
shareholders may be called at any time by the Board (or by an officer of the
Corporation authorized to do so by the Board ). A special meeting of the
shareholders may also be called by the holders of at least 20% of the votes that
all shareholders are entitled to cast at the particular meeting. In addition, a
special meeting of the holders of Preferred Shares or any series thereof for the
purpose of electing directors who may be elected by such holders or taking any
other action that such holders may take, as provided by the Articles, may be
called as provided in the Articles. At any time, upon written request of any
person or persons entitled to call and who have duly called a special meeting,
it shall be the duty of the Secretary to set the date of the meeting, if such
date has not been set by the Board, on a day not more than sixty days after the
receipt of the request, and to give due notice of such meeting to the
shareholders. If the Secretary shall neglect or refuse to set the date of the
meeting and give notice thereof, the person or persons calling the meeting may
do so.
Section 3. Place and Notice of Meetings of Shareholders. All meetings
of shareholders shall be held at the principal office of the Corporation unless
the Board (or an officer of the Corporation authorized to do so by the Board
)shall decide otherwise, in which case such meetings may be held at such
location within or without the Commonwealth of Pennsylvania as the Board may
from time to time direct. Written notice of the place, day, and hour of all
meetings of shareholders and, in the case of a special meeting, of the general
nature of the business to be transacted at the meeting, shall be given to each
shareholder of record entitled to vote at the particular meeting either
personally or by sending a copy of the notice through the mail or by overnight
courier to the address of the shareholder appearing on the books of the
Corporation or supplied by such shareholder to the Corporation for the purpose
of notice or by other means including electronic means permitted by law. Except
as otherwise provided by the Bylaws or by law, such notice shall be given at
least 10 days before the date of the meeting by the President, Vice President,
or Secretary. A waiver in writing of any written notice required to be given,
signed by the person entitled to such notice, whether before or after the time
stated, shall be deemed equivalent to the giving of such notice. Attendance of a
person, either in person or by proxy, at any meeting shall constitute a waiver
of notice of such meeting, except where a person attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting was not lawfully called or convened.
Section 4. -A. Nominations by Shareholders of Candidates for Election
as Directors. In addition to the nomination by the Board of candidates for
election to the Board as hereinafter provided, candidates may be nominated by
any shareholder of the Corporation entitled to notice of, and to vote at, any
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meeting called for the election of directors. Subject to the last sentence of
Article Sixth (B) of the Articles and to paragraph (vi) of Article Sixth (H) of
the Articles, nominations, other than those made by or on behalf of the Board,
shall be made in writing and shall be received by the Secretary of the
Corporation not later than (i) with respect to an election of directors to be
held at an annual meeting of shareholders, (A) for the annual meeting of
shareholders to be first held in calendar year 2005, (the "2005 ANNUAL
MEETING"), by January 15, 2005 and (B) for all other annual meetings of
shareholders, 90 days prior to the anniversary date of the immediately preceding
annual meeting of shareholders (provided that, if the date of the annual meeting
of shareholders is more than 30 days before or after the anniversary date of the
immediately preceding annual meeting of shareholders, the shareholder nomination
shall be received within 15 days after the public announcement by the
Corporation of the date of the annual meeting of shareholders, and (ii), with
respect to an election of directors to be held at a special meeting of
shareholders, the close of business on the 15th day following the date on which
notice of such meeting is first given to shareholders or public disclosure of
the meeting is first made, whichever is earlier. Such nomination shall contain
the following information to the extent known to the notifying shareholder: (a)
the name, age, business address, and residence address of each proposed nominee
and of the notifying shareholder; (b) the principal occupation of each proposed
nominee; (c) a representation that the notifying shareholder intends to appear
in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (d) the class and total number of shares of the Corporation that
are beneficially owned by the notifying shareholder and by the proposed nominee
and, if such shares are not owned solely and directly by the notifying
shareholder and the proposed nominee, the manner of beneficial ownership; (e) a
description of all arrangements or understandings between the notifying
shareholder and each nominee and any other person or persons (naming such person
or persons) pursuant to which the nomination or nominations are to be made by
the notifying shareholder; (f) such other information regarding each nominee
proposed by such shareholder as would be required to be included in a proxy
statement filed with the Securities and Exchange Commission pursuant to
Regulation 14A under the Exchange Act had the nominee been nominated, or
intended to be nominated, by the Board of Directors; and (g) the consent of each
nominee to serve as a director of the Corporation if so elected. The Corporation
may request any such proposed nominee to furnish such other information as may
reasonably be required by the Corporation to determine the qualifications of the
proposed nominee to serve as a director of the Corporation. Within 15 days
following the receipt by the Secretary of a shareholder notice of nomination
pursuant hereto, the Nominating and Governance Committee shall instruct the
Secretary of the Corporation to advise the notifying shareholder of any
deficiencies in the notice as determined by the Committee. The notifying
shareholder shall cure such deficiencies within 15 days after receipt of such
advice. No persons shall be eligible for election as a director of the
Corporation unless nominated in accordance with the Bylaws. Nominations not made
in accordance with the Bylaws may, in the discretion of the presiding officer at
the meeting and with the advice of the nominating and governance committee of
the Board, be disregarded by the presiding officer and, upon his or her
instructions, all votes cast for each such nominee may be disregarded; the
determinations of the presiding officer at the meeting with respect to such
matters shall be conclusive and binding upon all shareholders of the Corporation
for all purposes.
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- B. Certain Nominations for the 2005 Annual Meeting and to Fill
Certain Vacancies. Subject to the mandatory requirements of applicable law,
notwithstanding anything to the contrary in the foregoing provisions of Section
4-A of this Article, each of the two individuals identified on Schedule 6.3 of
the Stockholder and Registration Rights Agreement between the Corporation and
the Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust,
dated as of the Effective Date (or his successor as a director, if he did not
serve for his full initial term until the 2005 Annual Meeting) shall be
considered nominated for election as a director at the 2005 Annual Meeting (if
such individual is available and willing to serve as a director).
Notwithstanding anything to the contrary in paragraph (c) of Section 9 of
Article III hereof, if such individuals (or their successors) are not
recommended by the nominating and governance committee and nominated the Board
for election as directors at the 2005 Annual Meeting, then the candidate of the
nominating and governance committee and nominee of the Board for the position on
the Board held by either of such individuals (or his successor as a director, if
he did not serve for his full initial term) shall (in addition to any other
approval required by law, the Articles or the Bylaws) be subject to approval of
each of such individuals if he is then a director or, if he is not then a
director, shall be subject to approval by a majority of the other directors of
the Corporation at such time, other than any director who is an "affiliated
person" of the Trust within the meaning of Rule 10A-3 under the Exchange Act. In
addition, with respect to the filling of any vacancy on the Board arising before
the 2006 Annual Meeting by reason of the death, disability, resignation, removal
or disqualification of either of such two identified individuals (or his
successor as selected in accordance with the immediately preceding sentence or
Section 3 of Article III hereof), the nomination of an individual to fill such
vacancy shall be subject to the same approval as required for a nomination
referred to in the immediately preceding sentence.
Section 5. Advance Notice of Other Matters to be Presented by
Shareholders. At any annual meeting or special meeting of shareholders, only
such business as is properly brought before the meeting in accordance with this
paragraph may be transacted. Subject to paragraph (vi) of Article Sixth (H) of
the Articles, to be properly brought before any meeting, any proposed business
must be either (a) specified in the notice of the meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
properly brought before the meeting by or at the direction of the Board of
Directors, or (c) if brought before the meeting by a shareholder, then (1)
written notification of such proposed business must have been received by the
Secretary of the Corporation from a shareholder of record on the record date for
the determination of shareholders entitled to vote at such meeting not later
than (i), with respect to business to be proposed at an annual meeting of
shareholders, (A) for the first annual meeting of shareholders held after the
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Effective Time, not more than 20 days after the public announcement by the
Corporation of the date of the annual meeting of shareholders, and (B) for all
other annual meetings of shareholders, 90 days prior to the anniversary date of
the immediately preceding annual meeting of shareholders (provided, that, if the
date of the annual meeting of shareholders is more than 30 days before or after
the anniversary date of the immediately preceding annual meeting of
shareholders, the notification must have been received within 15 days after the
public announcement by the Corporation of the date of the annual meeting of
shareholders) and (ii) with respect to business to be proposed at a special
meeting of shareholders, the close of business on the 15th day following the
date on which notice of such meeting is first given to shareholders or public
disclosure of the meeting is made, whichever is earlier. Such shareholder
notification shall set forth the nature of and reasons for the proposal in
reasonable detail and, as to the shareholder giving notification, (1) the name
and address of such shareholder and (2) the class and series of all shares of
the Corporation that are beneficially owned by such shareholder. Within 15 days
following receipt by the Secretary of a shareholder notification of proposed
business pursuant hereto, the Corporation shall advise the shareholder of any
deficiencies in the notification. The notifying shareholder may cure such
deficiencies within 15 days after receipt of such advice, failing which the
shareholder's notification shall be deemed invalid.
Section 6. Quorum for Shareholder Meetings. At any meeting of the
stockholders, the presence, in person or by proxy, of stockholders entitled to
cast at least a majority of the votes which all shareholders are entitled to
cast upon a matter shall constitute a quorum for the transaction of business
upon such matter, and the stockholders present at a duly organized meeting can
continue to do business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. If a meeting cannot be
organized because a quorum has not attended, those present may, except as
otherwise provided by law, adjourn the meeting to such time and place as they
may determine, but in the case of any meeting called for the election of
directors, those who attend the second of such adjourned meetings, although less
than a quorum, shall nevertheless constitute a quorum for the purpose of
electing directors.
Section 7. Votes Per Share. Except as otherwise provided in the
Articles or by law, every stockholder of record shall have the right, at every
stockholders' meeting, to one vote for every share standing in his name on the
books of the Corporation. Except as may be explicitly provided for by the
Articles with respect to the election of one or more directors by holders of one
or more series of Preferred Stock, in the election of directors stockholders
shall be entitled to cast for any candidate for election as a director only one
vote per share and shall not be entitled to cumulate their votes and cast them
for one candidate or distribute them among any two or more candidates.
Section 8. Proxies. Every stockholder entitled to vote at a meeting
of stockholders may authorize another person or persons to act for him by proxy.
A proxy may be submitted to the Secretary by a stockholder in writing, by
telephone, electronically or any other means permitted by law.
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Section 9. Required Vote for Shareholder Action. Except in respect of
the election of directors (as to which a plurality vote shall be required as
provided by Article III of the Bylaws) and subject to Section 11 of this Article
II, all questions submitted to the stockholders and all actions by the
stockholders shall be decided by the affirmative vote of the shareholders
present, in person or by proxy, entitled to cast at least a majority of the
votes which all shareholders present are entitled to vote on the matter, unless
otherwise provided by the Articles, the Bylaws or by law. For purposes of this
section, in the event that a holder of shares of a class or series that is
entitled to vote on a matter is present in person or by proxy at a meeting but
is not permitted by reason of a legal disability or by a contractual restriction
or otherwise to vote the shares such holder holds on such matter, the shares
held by such holder and not so permitted to be voted shall nevertheless be
considered entitled to vote and present for purposes of determining the number
of votes required for stockholder action.
Section 10. Ballots; Judges of Election. Elections for directors need
not be by ballot except on demand made by a stockholder at the election and
before the voting begins. In advance of any meeting of stockholders, the Board
may appoint judges of election who need not be stockholders to act at such
meeting or any adjournment thereof, and if such appointment is not made, the
chairman of any such meeting may, and on request of any stockholder or his proxy
shall, make such appointment at the meeting. The number of judges shall be one
or three and, if appointed at a meeting on request of one or more stockholders
or their proxies, the majority of the shares present and entitled to vote shall
determine whether one or three judges are to be appointed. No person who is a
candidate for office shall act as a judge. In case any person appointed as judge
fails to appear or fails or refuses to act, the vacancy may be filled by
appointment made by the Board in advance of the convening of the meeting or at
the meeting by the person or officer acting as chairman of the meeting. On
request of the chairman of the meeting or of any stockholder or his proxy, the
judges shall make a report in writing of any challenge or question or matter
determined by them and execute a certificate of any fact found by them.
Section 11. Action Without a Meeting. To the fullest extent and in
the manner permitted by law, any action required or permitted to be taken at a
meeting of the stockholders or of a class or series of stockholders may be taken
without a meeting of the stockholders or of such class or series of stockholders
upon the consent in writing signed by such stockholders who would have been
entitled to vote the minimum number of votes that would be necessary to
authorize the action at a meeting at which all the stockholders entitled to vote
thereon were present and voting. The consents shall be filed with the Secretary.
ARTICLE III
The Board of Directors
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Section 1. Authority of the Board of Directors. Except as otherwise
provided by law and subject to the provisions of the Articles and the Bylaws,
all powers vested by law in the Corporation may be exercised by or under the
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authority of, and the business and affairs of the Corporation shall be managed
under the direction of, a Board of Directors which shall be constituted as
provided by law, the Articles and the Bylaws.
Section 2. Number Of Directors. In accordance with the Articles,
commencing with the Effective Time, the Board shall consist of nine members and,
thereafter until the first annual meeting held during calendar 2006 (the "2006
ANNUAL MEETING"), the Board shall consist of not less than nine members. After
the 2006 Annual Meeting, subject to the provisions of law, the Articles and the
Bylaws, the Board shall consist of not fewer than seven nor more than eleven
individuals, the exact number to be set from time to time by the Board pursuant
to a resolution adopted by the affirmative vote of a majority of the Board, plus
such number of additional individuals as may be elected by the holders of
Preferred Shares in accordance with the Articles and the Bylaws, provided that
no reduction in the number of members shall end the term of office of any
director earlier than such term of office would otherwise end and provided,
further, that, for so long as the Armstrong World Industries, Inc. Asbestos
Personal Injury Settlement Trust Beneficially Owns Voting Shares (as defined in
paragraph (iii) of Article Sixth (H) of the Articles (as in effect at the
Effective Time)) entitling the holders thereof to cast more than 20% of the
votes which the holders of all Voting Shares are entitled to cast in the
election of directors, any increase in the number of members of the Board above
eleven shall be subject to the prior written consent of such trust.
Section 3. Vacancies. Vacancies on the Board (including any vacancy
created by an increase in the size of the Board) may be filled by action of the
shareholders or the Board, as provided by and subject to applicable law and the
Articles. With respect to any vacancy on the Board occurring prior to the 2006
Annual Meeting by reason of the death, disability, resignation, removal or
disqualification of either of the two initial directors of the Corporation as of
the Effective Date who are identified on Schedule 6.3 of the Stockholder and
Registration Rights Agreement between the Corporation and the Armstrong World
Industries, Inc. Asbestos Personal Injury Settlement Trust, dated as of the
Effective Date, or the successor to such individual as a director selected in
accordance with the following provisions of this sentence or nominated for
election at the 2005 Annual Meeting in accordance with the provisions of Section
4-B of Article II hereof, the nomination of such individual for election by the
shareholders or for election by the Board to fill the vacancy shall be subject
to the approval required by the last sentence of Section 4-B of Article II
hereof.
Section 4. Annual Organizational Meeting of the Board. The Board
shall hold an annual organizational meeting immediately following the annual
meeting of the shareholders at the place thereof, without notice in addition to
the notice of the annual meeting of shareholders, or at such other time as soon
as practicable after such meeting as the Board shall determine and shall at the
annual organizational meeting elect a President, a Secretary and a Treasurer of
the Corporation and such other officers of the Corporation as shall be provided
by the Bylaws or determined by the Board to be appropriate, shall establish the
standing committees of the Board provided by the Bylaws and may take such other
action as the Board determines to be appropriate. Officers of the Corporation
and standing and other committees of the Board may also be elected at any other
time by the Board.
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Section 5. Other Meetings of the Board. All meetings of the Board,
other than the annual organizational meeting, shall be held at the principal
office of the Corporation unless the Board (or the person or persons entitled to
call and calling the meeting) shall decide otherwise, in which case such
meetings may be held at such location within or without the Commonwealth of
Pennsylvania as the Board (or the person or persons entitled to call and calling
the meeting) may from time to time direct. Regular meetings of the Board shall
be held at such time (and place) in accordance with such schedule as the Board
shall have determined in advance and no further notice of regular meetings of
the Board shall be required. The Independent Directors shall meet periodically
without any member of management present and, except as the Independent
Directors may otherwise determine, without any other director present to
consider the overall performance of management and the performance of the role
of the Independent Directors in the governance of the Corporation; such meetings
shall be held in connection with a regularly scheduled meeting of the Board
except as the Independent Directors shall otherwise determine. Special meetings
of the Board may be called by the Chairman of the Board (if any), a Vice
Chairman of the Board (if any), the President or by any two or more directors by
giving written notice at least two Business Days in advance of the day and hour
of the meeting to each director (unless it is determined by the Chairman of the
Board (if any), a Vice Chairman of the Board (if any) or the President to be
exigent under the circumstances for the protection of the interests of the
Corporation that the Board meet earlier, in which case no less than twenty-four
hours notice shall be given), either personally or by facsimile, or other means
including electronic means permitted by law. Attendance at any meeting of the
Board shall be a waiver of notice thereof, unless such lack of notice is
protested at the outset of the meeting. If all the members of the Board are
present at any meeting, no notice of the meeting shall be required. For purposes
hereof, written notice shall include notice provided by e-mail or in other
electronic form as long as a documentary copy of such electronic notice may be
made.
Section 6. Quorum. A majority of the members of the Whole Board shall
constitute a quorum for the transaction of business but, if at any meeting a
quorum shall not be present, the meeting may adjourn by a majority of those
present until such time, from time to time, until a quorum shall be present.
Section 7. Telephonic Participation. Directors may participate in a
meeting of the Board or a committee thereof by conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other.
Section 8. Chair and Vice Chair of the Board. The Board may, by
resolution adopted by a majority of the Whole Board, at any time designate one
of its members as Chair of the Board. The Chairman of the Board shall preside at
the meetings of the Board, shall be responsible for the orderly conduct by the
9
Board of its oversight of the business and affairs of the Corporation and its
other duties as provided by law, the Articles and the Bylaws and shall have such
other authority and responsibility as the Board may designate. The Board may, by
resolution adopted by the Board, at any time also designate one or more of its
members as Vice Chair of the Board. A Vice Chair of the Board shall assist the
Chairman in the conduct of his duties, including by presiding at meetings of the
Board in the absence of the Chair of the Board, and shall have such other
authority and responsibility as the Board may designate. A Chair or Vice Chair
of the Board shall not be considered an officer of the Corporation unless
otherwise provided by the Board.
Section 9. Committees of the Board. The Board may, by resolution
adopted by a majority of the Whole Board, at any time designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation, except as otherwise provided by the Bylaws. The Board may designate
one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. Subject to the
following provisions of this section, any such committee to the extent provided
in such resolution shall have and may exercise any or all of the authority and
responsibility of the Board in the management of the business and affairs of the
Corporation, except at otherwise provided by law, the Articles or the Bylaws.
Except as otherwise provided by the Articles, the Bylaws or action of the Board,
a quorum for action by a committee shall be a majority of the members (assuming
no vacancy) and action by vote of a majority of the members at a meeting duly
called at which a quorum is present shall constitute action by the committee.
Each committee shall keep a record of its actions and all material actions taken
by a committee on behalf of the Board shall be reported to the full Board
periodically. In all other respects, the Board may, by resolution adopted by a
majority of the Whole Board, establish rules of procedure for a committee,
including designating a member of a committee as its chair. In the absence of
the designation by the Board of the chair of a committee or the adoption by the
Board of rules of procedure for a committee, the committee shall adopt its own
rules of procedure and elect its chair. The Board shall establish standing
committees of the Board as provided by the following provisions of this section.
(a) Audit Committee. The audit committee shall be composed of at
least three members of the Board, each of whom shall be an Independent
Director, shall not, in relation to the Corporation, be an "affiliated
person" as defined in Rule 10A-3 under the Exchange Act (as from time
to time in effect) and shall meet such other qualifications for
membership on the audit committee as are from time to time required by
the listing standards of the NYSE or Nasdaq applicable to the
Corporation. The audit committee shall assist the Board in overseeing
the Corporation's financial reporting and shall have such authority
and responsibility as is provided in the committee's charter (as
hereinafter provided for) and, subject thereto, as is normally
incident to the functioning of the audit committee of a
publicly-traded company and shall perform the other functions provided
to be performed by it by the Bylaws and such other functions as are
from time to time assigned to it by the Board.
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(b) Management Development and Compensation Committee. The
management development and compensation committee shall be composed of
at least three members of the Board, each of whom shall be an
Independent Director and shall meet such other qualifications as may
be necessary to qualify as a non-employee director under Rule 16b-3
under the Exchange Act (as from time to time in effect) and as an
outside director under Section 162(m) of the Internal Revenue Code of
1986, as amended (and as from time to time in effect). No member of
the committee shall be eligible to participate in any compensation
plan or program of the Corporation or any Subsidiary of the
Corporation that is administered or overseen by the committee. The
management development and compensation committee shall assist the
Board in overseeing the compensation of the Corporation's officers,
the Corporation's employee stock option or other equity-based
compensation plans and programs and the Corporation's management
compensation policies and shall have such authority and responsibility
as is provided in the committee's charter (as hereinafter provided
for) and, subject thereto and subject to other direction of the Board,
as is normally incident to the functioning of the management
compensation committee of a publicly-traded company and shall perform
the other functions provided to be performed by it by the Bylaws and
such other functions as are from time to time assigned to it by the
Board. Unless reviewed and, if necessary, approved by the committee,
the Corporation shall not cause or permit any Subsidiary of the
Corporation to pay or grant any compensation to any officer or
employee of the Corporation which, if paid or granted by the
Corporation, would require review or approval of the committee.
(c) Nominating and Governance Committee. The nominating and
governance committee shall be composed of at least three members of
the Board, each of whom shall be an Independent Director and the
appointment of each of whom shall require the affirmative vote of a
majority of the Independent Directors at the time. The nominating and
governance committee (i) shall have authority and responsibility to
recommend to the Board for approval the candidates to be recommended
by the Board to the shareholders for election as directors of the
Corporation or to be elected by the Board to fill a vacancy on the
Board, who shall be such as to cause, if such candidates are elected,
the composition of the Board to satisfy the requirements of the
Articles regarding director independence and the requirements of this
section, (ii) shall advise the Board on its policies and procedures
for carrying out its responsibilities and on the Corporation's
policies and procedures respecting shareholder participation in
corporate governance and (iii) shall have such authority and
responsibility as is provided in the committee's charter (as
hereinafter provided for) and, subject thereto and subject to other
direction of the Board, as is normally incident to the functioning of
the nominating or governance committee of a publicly-traded company
and (iv) shall perform the other functions provided to be performed by
it by the Bylaws and such other functions as are from time to time
assigned to it by the Board.
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(d) Committee Charters. The Board, by majority vote of the Whole
Board, shall approve a charter describing the purposes, functions and
responsibilities of each standing committee of the Board. Each
standing committee of the Board shall prepare and recommend to the
Board for its approval the committee's charter and shall, at least
annually, review and report to the Board on the adequacy thereof. In
addition to and without limiting the provisions of paragraphs (a)
through (c) of this section, each standing committee of the Board
shall have the authority and responsibility provided by its
Board-approved charter, subject to further action by the Board, and no
further authorization of the Board shall be necessary for actions by a
committee within the scope of its charter. Any other committee of the
Board may likewise prepare and recommend to the Board a charter for
the committee and shall have the authority and responsibility provided
by its Board-approved charter.
(e) Committee Advisors and Resources. Each standing committee of
the Board shall have the authority to retain, at the Corporation's
expense, such legal and other counsel and advisors as it determines to
be necessary or appropriate to carry out its responsibilities within
the scope of its charter. Each other committee of the Board shall have
like authority to the extent provided by its charter or otherwise
authorized by the Board. The Corporation shall pay the compensation of
the independent auditor of the Corporation for all audit services, as
approved by the Audit Committee, without need for further
authorization.
Section 10. Director Compensation. The Board may set the compensation
of directors as permitted by law.
ARTICLE IV
Officers
--------
Section 1. Officers Generally. The Board shall designate a President,
one or more Vice Presidents, a Treasurer, a Secretary and a General Counsel and
shall designate an officer as chief financial officer and an officer as chief
accounting officer and may designate such other officers, with such titles,
authority and responsibility (including Assistant Vice Presidents, Assistant
Treasurers and Assistant Secretaries), as the Board considers appropriate for
the conduct of the business and affairs of the Corporation. Any two or more
offices may be held by the same individual. Unless sooner removed by the Board,
all officers shall hold office until the next annual meeting of the Board and
until their successors shall have been elected. Any officer may be removed from
office at any time, with or without cause, by action of the Board.
Section 2. President. The President shall be the chief executive
officer of the Corporation, shall have general supervision of the business and
affairs and all other officers of the Corporation (except that, if there is a
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Chairman of the Board or a Vice Chairman of the Board who is considered an
officer of the Corporation, the President shall play only such supervisory role
with respect thereto as is provided by the Board) and, subject to the direction
of the Board, shall have the authority and responsibility customary to such
office. The President shall preside at all meetings of the shareholders and, in
the absence of a Chairman of the Board (if any) or Vice Chairman of the Board
and except as otherwise provided by the Board, at all meetings of the Board at
which the President is present.
Section 3. Vice Presidents; Operation or Division Presidents. The
Board may elect one or more Vice Presidents, with such further titles (including
designation as President of a division or operation of the Corporation) and with
such authority and responsibility as the Board may determine. In the absence or
disability of the President, his duties shall be performed by one or more Vice
Presidents or Operation or Division Presidents as designated by the Board.
Section 4. Chief Financial Officer; Controller. The Board shall
designate an officer as the chief financial officer of the Corporation, who
shall have general supervision of the financial affairs of the Corporation, such
other authority and responsibility as the Board may designate and, subject to
the direction of the Board, the authority and responsibility customary to such
office. In the absence or disability of the chief financial officer, his or her
duties may be performed by any other officer designated by him or her, by the
President or by the Board. The Board shall also designate an officer as the
Controller of the Corporation, who shall be the chief accounting officer of the
Corporation (and may be the same as or different from the chief financial
officer). The Controller shall have general supervision of the books and
accounts of the Corporation, such other authority and responsibility as the
Board may designate and, subject to the direction of the Board, the authority
and responsibility customary to such office. In the absence or disability of the
chief accounting officer, his or her duties may be performed by any other
officer designated by him or her, by the President or by the Board.
Section 5. Treasurer. The Treasurer (who may be the same as or
different from the chief financial officer and/or the chief accounting officer)
shall have supervision and custody of all funds and securities of the
Corporation and keep or cause to be kept accurate accounts of all money received
or payments made by the Corporation, and shall have such other authority and
responsibility as provided by the Bylaws or as the Board may designate and,
subject to the direction of the Board, the authority and responsibility
customary to such office. The Treasurer shall be ex-officio, and have the
authority and responsibility of, an Assistant Secretary.
Section 6. General Counsel. The Board shall designate a General
Counsel for the Corporation, who shall be the Corporation's chief legal officer
and shall have general supervision of the legal affairs of the Corporation and
such other authority and responsibility as the Board may designate and, subject
to the direction of the Board, the authority and responsibility customary to
such office.
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Section 7. Secretary. The Secretary shall have custody of the minutes
of the meetings of the Board, its committees and the stockholders, of the
Articles as amended and the Bylaws as amended and such other records of the
Corporation as respect its existence and authority to conduct business, shall
have such other authority and responsibility as provided by the Bylaws or as the
Board may designate and, subject thereto, the authority and responsibility
customary to such office. The Secretary shall send out notices of meetings of
the Board and stockholders as required by law or the Bylaws. The Secretary shall
attend and keep the minutes of the Board except as the Board may otherwise
designate. The Secretary shall be ex-officio, and have the authority and
responsibility of, an Assistant Treasurer.
Section 8. Assistant Treasurers; Assistant Secretaries. In the
absence or disability of the Secretary, his or her duties may be performed by an
Assistant Secretary. In the absence or disability of the Treasurer, his or her
duties may be performed by an Assistant Treasurer. Such assistant officers shall
also have such authority and responsibility as may be assigned to them by the
Board.
Section 9. Bonded Officers and Employees. Such officers and employees
of the Corporation as the Board shall determine shall give bond for the faithful
discharge of their duties in such form and for such amount and with such surety
or sureties as the Board shall require. The expense of procuring such bonds
shall be borne by the Corporation.
ARTICLE V
Limitation on Directors' Personal Liability; Indemnification of Directors,
--------------------------------------------------------------------------
Officers, Employees and Agents
------------------------------
Section 1. Limitation on Directors' Personal Liability. A director of
the Corporation shall not be personally liable for monetary damages for any
action taken or failure to take any action unless the director has breached or
failed to perform the duties of his or her office under Subchapter B of Chapter
17 of the Pennsylvania Business Corporation Law of 1988, as amended, and such
breach or failure to perform constitutes self-dealing, willful misconduct or
recklessness; provided, however, that the foregoing provision shall not
eliminate or limit the liability of a director
(i) for any responsibility or liability of such director pursuant
to any criminal statute, or
(ii) for any liability of a director for the payment of taxes
pursuant to local, state or federal law.
Section 2. Indemnification of Directors, Officers, Employees and
Agents.
(a) Indemnification of Directors and Officers. The
Corporation shall indemnify to the full extent permitted by law
any person made, or threatened to be made, a party to or
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otherwise involved in (as a witness or otherwise) an action, suit
or proceeding (whether civil, criminal, administrative,
legislative or investigative, and whether by or in the right of
the Company or otherwise asserted) by reason of the fact that the
person
(i) is or was a director or officer of the Corporation or
(ii) while a director or officer of the Corporation, either
(A) serves or served as a director, officer, partner,
member, trustee, employee or agent of any subsidiary of the
Corporation or other related enterprise at the request of the
Corporation or in connection with a related employee benefit plan
of the Corporation, any subsidiary of the Corporation or any such
enterprise,
(B) serves or served as a director, officer, partner,
member, trustee, employee or agent of any other unrelated
enterprise (including any charitable organization) in furtherance
of the interests of, and at the specific written request of the
Corporation, or in connection with a related employee benefit
plan of such enterprise,
against any expenses, judgments, fines, and amounts paid in
settlement actually and reasonably incurred in defending or
responding to any such pending or threatened action, suit or
proceeding (including any incurred in connection with any actions
brought by or in the right of the Corporation). A resolution or other
action by the Corporation or subsidiary electing, nominating or
proposing a person to a position referred to in this subsection 2(a)
shall constitute a specific written request of the Corporation
sufficient for the purposes of this Section. Upon written request of
a person claiming to be entitled to indemnification hereunder and
specifying the expenses, judgments, fines and amounts paid in
settlement against which indemnity is sought, the Corporation shall,
as soon as practicable and in any event within 90 days of its receipt
of such request, make a determination, in such manner as is required
by law, as to the entitlement of such person to indemnification
against such expenses as provided by this subsection 2(a). Such a
determination, however, shall not be conclusive as to such person's
entitlement to indemnification pursuant to this subsection 2(a) and
such person may seek to enforce an entitlement to indemnification
pursuant to this subsection 2(a) by appropriate proceedings in any
court of competent jurisdiction by showing that, notwithstanding such
determination, such person satisfied the standard of conduct required
by law to be satisfied in order for such person to be entitled to
indemnification from the Corporation as permitted by law.
(b) Advancement of Expenses. Expenses reasonably incurred by
a person referred to in subsection 2(a) above in defending or
responding to a civil, criminal, administrative, legislative or
investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of the action,
15
suit or proceeding upon receipt of an undertaking by or on behalf
of such person to repay such amount to the extent it shall
ultimately be determined that such person is not entitled to be
indemnified by the Corporation against such expenses or, in the
case of a criminal action in which a judgment has been entered
against such person, the Board of Directors so determines.
(c) Indemnification of Employees and Agents. The Corporation
may, upon authorization by the board of directors, the President
or any other officer designated by the board of directors,
indemnify, or agree to indemnify, and advance expenses to any
person who is or was an employee or agent of the Corporation or
any subsidiary of the Corporation to the same extent (or any
lesser extent) to which it may indemnify and advance expenses to
a director or officer of the Corporation in accordance with
subsection 2(b) above.
(d) Non-Exclusivity. The right to indemnification and
advancement of expenses conferred in this Section shall not be
deemed exclusive of any other rights to which any person
indemnified may be entitled under any agreement, vote of
stockholders or directors or otherwise, the Corporation having
the express authority to enter such agreements or make other
provision for the indemnification of and advancement of expenses
to any or all of its representatives as the Board of Directors
deems appropriate, including corporate policies and the creation
of one or more funds or equivalent guarantees for indemnity
payments and or expense advancements to present or future
indemnified persons.
(e) Continuing Contractual Rights. The right to
indemnification and the advancement of expenses provided in this
Section shall be a contract right, shall continue as to a person
who has ceased to serve in the capacities described herein, and
shall inure to the benefit of the heirs, executors and
administrators of such person. Expenses reasonably incurred by a
person in successfully enforcing a right to indemnification or
advancement of expenses provided to such person by, or as
permitted by, this Section 2 shall be paid by the Corporation.
Section 3. No Retroactive Amendment. No amendment, alteration or
repeal of this Article V, nor the adoption of any provision inconsistent with
this Article V, shall adversely affect any limitation on the personal liability
of a director or officer, or the rights of a person to indemnification and
advancement of expenses, existing at the time of such amendment, modification or
repeal, or the adoption of such an inconsistent provision.
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ARTICLE VI
Seal
----
The Corporation shall have a seal that shall contain the words
"Armstrong World Industries, Inc." and may be affixed to documents of the
Corporation as prima facie evidence of the act of the Corporation to the extent
provided by law.
ARTICLE VII
Share Certificates and Transfers
--------------------------------
Section 1. Form of Share Certificates. Shares of the Corporation may
be represented by certificates or may be uncertificated, but shareholders shall
be entitled to receive share certificates representing their shares as provided
by law. Share certificates shall be in such form as the Board may from time to
time determine and shall be signed by the President or one of the Vice
Presidents and countersigned by the Treasurer or an Assistant Treasurer or the
Secretary or an Assistant Secretary and embossed with the seal of the
Corporation or, if not so signed and sealed, shall bear the engraved or printed
facsimile signatures of the officers authorized to sign and the engraved or
printed facsimile of the seal of the Corporation. The death, incapacity,
resignation or removal of an officer who signed or whose facsimile signature
appears on a share certificate shall not affect the validity of the share
certificate.
Section 2. Transfers of Record. The shares of the Corporation shall,
upon the surrender and cancellation of the certificate or certificates
representing the same, be transferred upon the books of the Corporation at the
request of the holder thereof, named in the surrendered certificate or
certificates, in person or by his legal representatives or by his attorney duly
authorized by written power of attorney filed with the Corporation or its
transfer agent. In case of loss or destruction of a certificate of stock,
another may be issued in lieu thereof in such manner and upon such terms as the
Board shall authorize.
Section 3. Record Dates. The Board of Directors may set a time, not
more than 90 days prior to the date of any meeting of the shareholders, or the
date set for the payment of any dividend or distribution or the date for the
allotment of rights, or the date when any change or conversion or exchange of
shares stock will be made or go into effect, as a record date for the
determination of the shareholders entitled to notice of, or to vote at, any such
meeting, or entitled to receive payment of any such dividend or distribution, or
to receive any such allotment of rights, or to exercise the rights in respect to
any such change, conversion, or exchange of shares of the Corporation. In such
case, only such shareholders as shall be shareholders of record on the date so
set shall be entitled to notice of, or to vote at, such meeting, or to receive
payment of such dividend or distribution, or to receive such allotment of
rights, or exercise such rights, as the case may be, notwithstanding any
transfer of shares of the Corporation on the books of the Corporation after any
record date set as aforesaid.
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ARTICLE VIII
Fiscal Year; Financial Statements
---------------------------------
The fiscal year of the Corporation shall end on the 31st day of
December. Without limiting any other financial reporting obligation the
Corporation may have, the Board shall mail or otherwise cause to be sent to the
stockholders, within 120 days after the close of each fiscal year, financial
statements which shall include a balance sheet as of the end of such year,
together with a statement of income and expense for such year, prepared so as to
present fairly the financial condition and results of its operations of the
Corporation in accordance with generally accepted accounting principles. Such
financial statements shall have been audited in accordance with generally
accepted auditing standards by a firm of independent certified public
accountants and shall be accompanied by such firm's opinion as to the fairness
of the presentation thereof.
ARTICLE IX
Amendments
----------
Section 1. Amendment Generally. The Bylaws, as from time to time in
effect, may be amended, modified or repealed, in whole or in part, at any time
and from time to time in any respect by either (i) the shareholders, by the
affirmative vote of the holders of a majority of the outstanding shares entitled
to vote on the matter, or (ii) by the Board, by the affirmative vote of a
majority of the Whole Board, in either case except as otherwise provided by law
or by the Articles or by Section 2 of this Article of the Bylaws (as in effect
at the Effective Time).
Section 2. Certain Amendments. Commencing on the Effective Time and
continuing for so long as any shareholder Beneficially Owns at least 20% of the
Common Shares (but terminating at such time as no shareholder Beneficially Owns
at least 20% of the Common Shares), the Board shall not, without the affirmative
vote of the holders of 80% of the Common Shares outstanding, repeal, or adopt
any amendment of the Bylaws that would modify or be inconsistent with, the
following provisions of these Bylaws: (i) the definition of "Independent
Directors" in Section 1(h) of Article I (as in effect at the Effective Time),
(ii) Section 2 of Article II (as in effect at the Effective Time) insofar as
such section permits the holder or holders of a at least 20% of the votes that
all shareholders are entitled to cast to call a special meeting of the
stockholders to vote on a matter, (iii) Section 11 of Article II (as in effect
at the Effective Time) governing action by the stockholders by written consent
in lieu of a meeting, (iv) Sections 3 and 9 of Article III (as in effect at the
Effective Time) insofar as such sections relate to the selection of directors to
fill vacancies before the 2006 Annual Meeting or the nomination of individuals
for election of directors at the 2005 Annual Meeting, (iv) Section 2 of Article
III insofar as it relates to the Trust's consent rights with respect to
increases of the size of the Board above eleven members, and (v) Section 10(c)
of Article III insofar as such section provides that appointment of members of
the nominating and governance committee will require the affirmative vote of a
majority of the Independent Directors, and (vi) any provision of section of this
Article IX (as in effect at the Effective Time).
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ARTICLE X
Effective Time
--------------
The foregoing Bylaws have been adopted before the Effective Time by
action of the sole stockholder of the Corporation and shall be effective upon
the filing with the office of the Secretary of State of the Commonwealth of
Pennsylvania of Amended and Restated Article of Incorporation of the Corporation
and the effectiveness of such Amended and Restated Articles of Incorporation in
accordance with law on [________, 200_] (2) (the "EFFECTIVE TIME").
- -------------------------
(2) [The date to be inserted herein shall be the Effective Date of the Fourth
Amended Plan of Reorganization of the Corporation.]